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FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2010 Explanatory Memorandum

FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2010


                                  2008-2009





               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



                          HOUSE OF REPRESENTATIVES









             FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009






                           EXPLANATORY MEMORANDUM




             (Circulated by authority of the Cabinet Secretary,
                         Senator the Hon Joe Ludwig)

FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009

General Outline
The primary purpose of the Bill is to make major reforms to the Freedom of
Information Act 1982 (FOI Act) to promote a pro-disclosure culture across
government and to build a stronger foundation for more openness in
government.

These reforms arise from the Government's 2007 election commitments on
reform to the FOI Act set out in the policy statement Government
information: restoring trust and integrity.  The reforms implement a number
of the recommendations from the 1995 joint Australian Law Reform Commission
and Administrative Review Council Open government report on the FOI Act, as
well as other initiatives.

This Bill complements the proposed structural reforms to be implemented by
the Information Commissioner Bill 2009.  Those measures comprise the
establishment of the Office of the Information Commissioner and the new
independent statutory positions of Information Commissioner (as head of the
Office) and FOI Commissioner.  The existing statutory position of Privacy
Commissioner will also be established within the Office of the Information
Commissioner.  In relation to FOI, the Information Commissioner, supported
by the FOI Commissioner, will act as an independent monitor for FOI and
will be entrusted with a range of functions designed to make the Office of
the Information Commissioner both a clearing house for FOI matters and a
centre for the promotion of the objects of the FOI Act.

The Freedom of Information Amendment (Reform) Bill contains amendments:
 . directed at ensuring that the right of access to documents under the FOI
   Act is as comprehensive as it can be, limited only where a stronger
   public interest lies in withholding access to documents;
 . to give greater weight to the role that the FOI Act serves in pro-active
   publication of government information; and
 . to improve the request process under the FOI Act.

Schedule 1 of the Bill substitutes a new objects clause into the FOI Act
which emphasises the reasons underlying the objects in giving the
Australian community access to information held by the Government.

Schedule 2 overhauls Part II of the FOI Act and introduces a new
information publication scheme for Commonwealth agencies that are subject
to the FOI Act.  The new scheme provides a statutory framework for pro-
active publication of information by agencies.  The purpose of the scheme
is to allow the FOI Act to evolve as a legislative framework for giving
access to information through agency driven disclosure rather than as a
scheme that is primarily reactive to requests for documents.

Schedule 3 implements major changes for access to records under the
Archives Act 1983.   The open access period is to be brought forward from
30 years to 20 years for most Commonwealth records (other than a Cabinet
notebook or a record containing Census information).  The open access
period for Cabinet notebooks is to be brought forward from 50 to 30 years.
This Schedule also implements amendments to the exemption provisions in the
FOI Act.  A new, single form of public interest test is proposed which is
weighted towards disclosure, and this new test is to be applied to
additional exemption provisions.  Some exemption provisions will be
repealed.  Part IV of the FOI Act, which contains the exemption provisions,
is to be reorganised to group together those provisions which are subject
to the proposed public interest test (public interest conditional
exemptions) and those which are not (exemptions).

Schedule 4 makes provision for certain key FOI functions of the Information
Commissioner (which will also be performed by the FOI Commissioner).  The
Information Commissioner is to have a function of reviewing FOI decisions
made by agencies and Ministers.  FOI applicants will be able to apply for
Information Commissioner review either directly from a decision at first
instance or from an agency decision upon internal review.  Both an
applicant and an agency or Minister will have a right to apply to the
Administrative Appeal Tribunal for review of a decision made by the
Information Commissioner.

The Information Commissioner is also to have a function of investigating
action taken by agencies under the FOI Act.  The Commissioner may
investigate action upon complaint or at the Commissioner's own motion.
While the Ombudsman may still investigate complaints concerning action
under the FOI Act, it is intended that the Information Commissioner will
deal with most complaints of this kind.  The merits review function and the
investigation function provide different remedies.  If a person is
concerned with the correctness of a decision, the mechanism for remedy lies
in an application for review.  If a person is concerned with delay, or a
failure to receive assistance, the mechanism for remedy lies in an
investigation upon complaint.

A further measure in Schedule 4 gives the Information Commissioner the
power to declare a person to be a vexatious applicant for the purposes of
the FOI Act.  The Information Commissioner may exercise that power if
satisfied that a person's conduct involves an abuse of process (in
connection with making applications under the Act) or if a particular
request or application is manifestly unreasonable.

Schedule 5 contains proposed amendments that are consequential on the
establishment of the Office of the Information Commissioner under the
Information Commissioner Bill.  These amendments primarily substitute
references to the 'Privacy Commissioner' in other legislation with
'Information Commissioner'.  All privacy and FOI functions are principally
vested in the Information Commissioner under the Information Commissioner
Bill.  Amendments are also made to the Privacy Act as a consequence of the
proposal to bring the Office of the Privacy Commissioner into the Office of
the Information Commissioner.

Schedule 6 contains a number of other amendment proposals to improve the
operation of the Act.  This includes repealing provisions in the Act
relating to the imposition of fees, empowering the Information Commissioner
to extend time periods for processing requests in certain cases, and
enhancing the consultation provision in connection with a provision
addressing onerous requests.

A measure is included to extend the scope of the FOI Act to contracted
service providers who are delivering services to the community for and on
behalf of the Commonwealth.  Other amendment proposals will introduce some
limitations on access, including for intelligence agency information and a
limited exclusion for certain documents of the Department of Defence.

Schedule 7 contains amendment proposals to address transitional issues for
the new Office of the Information Commissioner, including for bringing the
Office of the Privacy Commissioner into the new Office.

Financial Impact Statement
The amendments in this Bill will have minimal financial impact on
Government revenue.  While the requirement for FOI application fees is
proposed to be removed, the total amount of application fees collected
(only $150,771 in 2007-2008) represents a very small fraction of the total
cost of administering the FOI Act (approximately 0.5% in 2007-008).

There will be compliance and resource implications for agencies, such as
revising training manuals, providing training for FOI decision makers and
making necessary adjustments to comply with the new Information Publication
Scheme (see Schedule 2), the level of which will vary from agency to
agency.  In relation to the proposal to bring forward the open access
period for most Commonwealth records from 30 years to 20 years, the greater
volume of records which will need to be examined over the transition period
will have resource implications for some agencies, especially the National
Archives of Australia.

Regulation Impact Statement
No regulation impact statement is required for the measures contained in
this Bill.

Notes on Clauses
List of abbreviations used
AAT                    Administrative Appeals Tribunal
AAT Act                Administrative Appeals Tribunal Act 1975
Archives               National Archives of Australia
Archives Act                 Archives Act 1983
FOI                    Freedom of Information
FOI Act                Freedom of Information Act 1982
IGIS                   Inspector-General of Intelligence and Security
IGIS Act               Inspector-General of Intelligence and Security Act
1986
Ombudsman Act    Ombudsman Act 1976
Open government report Joint Australian Law Reform Commission and
                       Administrative Review Council Open government report
                       on the FOI Act (1995)
Privacy Act Privacy Act 1988

Clause 1: Short title
Clause 1 is a formal clause which provides the citation of the Bill.

Clause 2: Commencement
Clause 2 (table item 1) provides that sections 1 to 3 of the Bill (and
anything not covered in the table) will commence on the day the Bill
receives Royal Assent.  Most other measures in the Bill are dependent on
the establishment of the new statutory position of Information Commissioner
and the Office of the Information Commissioner as proposed in the
Information Commissioner Bill.  Schedules 1, 3 (excluding item 15), 4, 5, 6
and 7 will therefore commence immediately after the commencement of
section 3 of the Information Commissioner Act.

The commencement of Schedule 2, which introduces a new Information
Publication Scheme for agencies subject to the FOI Act, has a deferred
commencement of six months from the commencement of section 3 of the
Information Commissioner Act.  This deferred commencement is to allow
agencies sufficient time to prepare for the introduction of the publication
requirements, including the requirement to develop a plan under the
Information Publication Scheme.

The commencement of item 15 of Schedule 3, which requires agencies to
publish information disclosed in response to an access request, is also
deferred by six months from the commencement of section 3 of the
Information Commissioner Act.  This is to allow agencies sufficient time to
prepare for this requirement, such as ensuring agency websites are properly
configured (it is intended that information published under this
requirement will predominately be published on agency websites).

Clause 3: Schedules
This clause provides for each Act specified in a Schedule to the Bill to be
amended in accordance with the items set out in the relevant Schedule.
Schedule 1 - Objects

Freedom of Information Act 1982

Item 1- section 3
This item repeals the existing objects provision of the FOI Act and
substitutes a new objects provision.  The new objects explain the
underlying rationale of the FOI Act, which is concerned with strengthening
Australia's representative democracy through increasing participation in
government processes and increasing the accountability of government.

Proposed subsection 3(1) provides that the objects of the FOI Act are to
give the Australian community access to government information by requiring
agencies to publish information (this is related to the new pro-active
publication requirements established under Schedule 2 of the Bill) and by
providing for a right of access to documents (this is related to the
existing right of access in Part III of the FOI Act).

Proposed subsection 3(2) explains the underlying rationale for the Act and
its significance for the proper working of Australia's representative
democracy.

Proposed subsection 3(3) responds to recommendation 4 of the Open
government report that the object clause should acknowledge that the
information collected and created by public officials is a national
resource.

Proposed subsection 3(4) reflects existing subsection 3(2) of the FOI Act.


Proposed section 3A confirms an existing policy position that the FOI Act
is not intended to codify the law relating to the disclosure of government
information.  This policy position is currently reflected in section 14 of
the FOI Act (which is repealed by item 2).  An agency may disclose
information without a request under the FOI Act, including information
which would be exempt under the Act.  An agency may also disclose exempt
information pursuant to a request under the Act.  However, restrictions
such as secrecy provisions may prohibit disclosure of certain information
so that there is no discretion to release information of that kind.
Restating this policy in the objects provision is intended to place greater
emphasis on the discretion to release documents outside the FOI Act.  The
provision makes clear that a document, including an exempt document, may be
disclosed whether or not access has been requested under the FOI Act.

To complement this measure, items 50 (proposed section 90) and 56 of
Schedule 4 propose to extend existing protections in the FOI Act for
Ministers and officials from certain civil and criminal proceedings so that
these protections cover disclosures of documents made in good faith in
circumstances where the documents may be exempt or where disclosure is made
outside the FOI Act.

Item 2 - section 14
This item is consequential to the amendment proposed at item 1.  The effect
of section 14 is preserved in proposed new section 3A.
Schedule 2 - Publication of information

Freedom of Information Act 1982

Item 1 - subsection 4(1)
This item inserts a definition that is related to the amendment proposed at
item 3 (proposed section 8A).

Item 2 - subsection 4(9)
Item 2 is a minor amendment that is consequential to the amendments
proposed at item 3.

Item 3 - Part II
Item 3 repeals Part II of the FOI Act (publication of certain documents and
information) and establishes a new information publication scheme for
Commonwealth agencies subject to the FOI Act.  The publication scheme will
not apply to Ministers.

The new scheme provides a statutory framework for pro-active publication of
information by agencies.  The purpose of the scheme is to allow the FOI Act
to evolve as a legislative framework for giving access to information
through agency driven publication, rather than as a scheme that is only
reactive to requests for documents.

Proposed subsection 7A provides a guide to assist understanding the
elements of the information publication scheme.

Under proposed subsection 8(1), an agency must prepare a plan showing how
it proposes to implement the publication requirement.  The plan must be
published by the agency (under proposed paragraph 8(2)(a)), such as by
making it available on the agency's website.

Proposed section 8(2) sets out information that must be published.  The
classes of information substantially reflect classes of information that
must be published under existing paragraph 8(1)(a) and subsection 9(1) of
the FOI Act.  For example, an agency will continue to be required to
publish information about its operations and on the rules and guidelines
that are used to make decisions affecting members of the public.
Additional classes of information must also be published.  Under proposed
paragraph 8(2)(d), for example, agencies will be required to publish
details of statutory appointments.  Details might include the name of the
person appointed, the position to which they are appointed (and particulars
of the position), the provision under which they are appointed and the
length of the appointment.

Proposed paragraph 8(2)(g) requires agencies to publish information in
documents to which access is routinely (regularly) given in response to
access requests under Part III of the FOI Act.  The intention is that
information in which there has been a demonstrated level of interest from
the community by way of access requests should be pro-actively made
available to the public (without requiring - or at least limiting the need
for - applications to be made).  There are some exceptions to this
requirement which recognise that not all types of information routinely
disclosed in response to FOI access requests are appropriate for public
disclosure.  For example, an agency might regularly grant access to
documents in connection with case-related files, but access might only be
given to a relatively small portion of total files held by the agency.  The
resource implications of pro-actively publishing this information on the
agency's website may be high.  To address situations such as this, proposed
subparagraph 8(2)(g)(iii) empowers the Information Commissioner to relieve
an agency from the requirement to publish certain classes of information by
making a determination.

Around 85-90 per cent of FOI requests annually are for personal
information.  Proposed subparagraphs 8(2)(g)(i) and (ii) qualify the
publication requirement so that it does not apply to personal and business
information (of any person) if it would be unreasonable to publish the
information.  In most cases it would be unreasonable, for example, to
publish personal or business information where access is routinely given to
the person or business to whom the information relates.  It would also be
unreasonable to publish the information if it is personal or business
information about a third party in circumstances where the third party
consents to disclosure to a particular applicant (but would not give
consent if the information was to become publicly available).  It would
generally not be unreasonable to publish the names of officials from
Commonwealth agencies in connection with their duties.

Proposed subsection 8(3) allows the Information Commissioner to make a
determination for the purposes of proposed subparagraph 2(g)(iii).  A
determination of this kind is a legislative instrument for the purposes of
the Legislative Instruments Act 2003.

Proposed subsection 8(4) establishes that an agency may publish other
information it holds.  The intention is that an agency, in addition to
publishing the information that must be published under proposed subsection
8(2), will publish other classes of information that it holds, having
regard to the objects of the FOI Act and guidelines issued by the
Information Commissioner (see proposed section 9A in this Schedule).
Agencies are generally best placed to identify information they hold which
should be published taking into account the objects of the FOI Act.

Proposed subsection 8(5) clarifies that section 8 applies to a function or
power even if the agency does not have that function or power under an
enactment.

Proposed section 8A defines 'operational information' for the purposes of
paragraph 8(2)(j) (which is information that must be published by an
agency).  This section is intended to capture a substantial part of the
existing requirement to publish information under existing subsection 9(1)
of the FOI Act.  Proposed subsection 8A(2) reflects an existing
qualification to the requirement under subsection 9(1) of the FOI Act.  For
example, law reports published by a private publishing company would not be
operational information of an agency.

Proposed section 8B requires agencies to ensure that the information
published under the information publication scheme is accurate, up-to-date
and complete.  If members of the public are to use or rely on published
information it is important that the information is accurate or that an
assessment can be made as to its currency.

Proposed section 8C establishes two restrictions on the requirement for
information to be published under the scheme.  Proposed subsection 8C(1)
makes it clear that an agency is not required to publish information that
would be exempt under the FOI Act.  However, this does not prevent an
agency from publishing matter that might otherwise be exempt and that can
properly be published.  Proposed subsection 8C(2) makes it clear that an
agency is not required to publish information which is restricted or
prohibited from publication under other legislation (for example by
application of a secrecy provision).

Proposed section 8D provides for how and to whom information is to be
published.  In general, it is anticipated that the bulk of information will
be published to members of the public by making the information available
on the agency's website.  Proposed paragraph 8D(2)(b) is intended to
facilitate access where only certain classes of persons may have a
legitimate interest in the information.  In this case, it may not be
appropriate for wider disclosure.  For example, access could be arranged by
issuing passwords to access a separate part of the agency's website.

Proposed paragraph 8D(3)(c) is intended to address instances where it is
not possible or reasonably practicable to publish information on a website.
 This could be due to information being contained in a format that cannot
readily be uploaded to a website.  In all cases, details of how the
information may be obtained must be published on the agency website, such
as the name and telephone number of an officer to contact to arrange access
to the information.

Proposed subsections 8D(4) and (5) provide for charges to be imposed.
These charges are separate from charges imposed for processing an access
request under regulations.  Proposed subsection 8D(4) makes it clear that
an agency cannot charge a person for simply accessing information from the
website.  Charges may be imposed if the agency incurs a specific
reproduction or incidental cost in providing access.  This would include a
situation where, for example, the information was contained in a recording
that could not be readily converted to electronic format.

Proposed section 8E permits the Information Commissioner to assist an
agency in meeting some of its obligations under the scheme.  This is
consistent with the objective of the Information Commissioner being a
resource for agencies (as well as for members of the public).  The
Information Commissioner could, for example, assist an agency to identify
the types of information that should be published under the permissive part
of the publication scheme (beyond the mandatory classes in proposed
subsection 8(2)).

Proposed section 8F vests the Information Commissioner with functions
relating to monitoring compliance by agencies with the publication scheme.
The Information Commissioner may undertake a general review, a formal
investigation under proposed Part VIIB, or a less formal monitoring
process.  Under Part VIIB, the Information Commissioner has certain powers
to obtain access to information and may report to the Minister if not
satisfied that an agency has taken appropriate action to implement an
investigation recommendation.

Proposed section 9 requires agencies to review their publication schemes
from time to time and at least within 5 years of each completed review.
The review must be completed in conjunction with the Information
Commissioner.  This may involve reporting to the Commissioner on the
review.  The first review must be completed within 5 years of commencement
of the provision.

Proposed section 9A requires agencies to have regard to the objects of the
Act and to guidelines issued by the Information Commissioner in meeting the
obligations to publish information.  It is not intended that under the
information publication scheme agencies should publish all of the
information they hold.  The decision on what to publish is to be guided by
the objects of the Act (for example, information that could assist in
increasing scrutiny of the government's activity or could increase public
participation in government processes).  The Information Commissioner's
guidelines may address classes of information appropriate for publication
(beyond the mandatory classes of information in proposed subsection 8(2)),
how long information should remain published, as well as the manner in
which information should be published.

Proposed section 10 is intended to replicate the effect of existing section
10 of the FOI Act.

Proposed section 10A provides for who may perform functions or exercise
powers under new Part II.  The authority is consistent with existing
section 23 of the FOI Act that is applicable to Part III access requests.

Item 4 - saving - unpublished information
This item preserves the protection afforded by existing section 10 of the
FOI Act in certain circumstances so that no disadvantage arises from
repeal.

Schedule 3 - Exemptions

Part 1 - Amendments to the Archives Act, open access period amendments

Item 1- subsection 3(1)
This item inserts a definition for 'open access period' which is
essentially a signpost to the other provisions in the Act which separately
define periods for a Cabinet notebook, a record containing Census
information and any other record.  The effect of the open access period is
that upon reaching a defined age, access to records is regulated under the
Archives Act instead of the FOI Act.  When a record is in the open access
period the Archives must cause the records to be made available for public
access, upon request, unless an exemption applies (see section 31 of the
Archives Act).  Agencies are not excluded from the operation of the
Archives Act (as they can be under the FOI Act) and the exemption rules are
different to those under the FOI Act to reflect that the need for
confidentiality reduces over time.

Item 2 - subsection 3(7)
This item repeals subsection 3(7) and substitutes a new definition for when
a record is in the open access period.  The purpose of the amendment is to
bring forward the open access period from 30 years to 20 years for most
Commonwealth records after a 10 year transition period commencing from 1
January 2011 and ending 31 December 2020.  Different open access periods
apply to a Cabinet notebook and a record containing Census information.  As
illustrated by the table, the effect of the transition is that the open
access period is gradually brought forward so that on and from 1 January
2021 the system returns to a single year release to which the proposed 20
year rule will apply.  For example, a record that came into existence in
the year ending 31 December 2000 will be in the open access period from 1
January 2021.

As a result of this amendment, the FOI Act will govern access to most
documents up until 20 years after the year the documents come into
existence and after that time access will be governed by the Archives Act
(see paragraph 12(1)(a) of the FOI Act).

Item 3 - subsection 22A(1)
Item 3 repeals subsection 22A(1) and substitutes a new definition for when
a record that is a Cabinet notebook is in the open access period.  The
purpose of this amendment is to bring forward the open access period for
Cabinet notebooks from 50 years to 30 years after a 10 year transition
period commencing from 1 January 2011 and ending 31 December 2020.  As
illustrated by the table, the effect of the transition is that the open
access period is gradually brought forward so that on and from
1 January 2021 the system returns to a single year release to which the
proposed 30 year rule will apply.  For example, a Cabinet notebook that
came into existence in the year ending 31 December 1990 will be in the open
access period from 1 January 2021.

Item 4 - paragraph 26(1)(a)
Item 4 is consequential to the proposal at item 2 to bring forward the open
access period for most records from 30 years to 20 years.  Under section 26
of the Archives Act, subject to certain exceptions, a person is guilty of
an offence if the person engages in conduct which results in addition to,
or alteration of, a Commonwealth record that has been in existence for more
than a certain period.  This item amends paragraph 26(1)(a) so that the
offence will apply to a Commonwealth record that has been in existence for
more than 15 years (instead of 25 years).  The reduction by 10 years is
consistent with the proposal to bring forward the open access period by
10 years at item 2.

Item 5 - paragraph 27(3)(b)
This item is consequential to the proposal at item 2 to bring forward the
open access period for most records from 30 years to 20 years.  Under
section 27 of the Archives Act a Commonwealth record that has been
determined to be part of the archival resources of the Commonwealth, and is
not in the custody of the Archives, must be transferred to the Archives by
a Commonwealth institution within a certain period of coming into existence
if it ceases to be a current record.  The purpose of this amendment is to
amend the time of compulsory transfer so that a record of this kind must be
transferred to the Archives within 15 years of coming into existence
(instead of 25 years) if it has not already been transferred to the
Archives.  The reduction by 10 years is consistent with the proposal to
bring forward the open access period by 10 years for most records at item
2.

Item 6 - subsection 30(2)
Item 6 is consequential to the proposal at item 2 to bring forward the open
access period for most records from 30 years to 20 years.  Under section 30
of the Archives Act, the Archives must ensure that all Commonwealth records
transferred to its care are made available, as reasonably required, for use
by Commonwealth institutions.  Records that have been in existence for more
than a certain period must not be made available to a Commonwealth
institution in a manner that involves the records leaving the custody of
the responsible person except as necessary for the proper conduct of the
business of the Commonwealth institution.  The purpose of this amendment is
to amend the time at which the custodial qualification applies to a record
so that it applies to a record that has been in existence for more than 15
years (instead of 25 years).  The reduction by 10 years is consistent with
the proposal to bring forward the open access period by 10 years for most
records at item 2.

Part 2 - Main exemption amendments to the FOI Act

Item 7 - subsection 4(1)
Item 7 inserts a definition into the interpretation section in the FOI Act
which defines Cabinet to include a committee of the Cabinet.  The
definition has application in connection with the Cabinet exemption (see
item 26 section 34), but does not change the scope of the Cabinet exemption
as it replicates an existing definition in the current FOI Act (see
subsection 34(6)).  It is a minor drafting change to improve readability.

Item 8 - subsection 4(1) (definition of Cabinet notebook)
This item is a minor amendment that is consequential to the amendment
proposed at item 7.  The reference to a committee of the Cabinet is not
required in light of the definition at item 7.

Item 9 - subsection 4(1)
Item 9 inserts a new term 'conditionally exempt' into the interpretation
section of the FOI Act which means a document to which Division 3 of Part
IV (public interest conditional exemptions) applies (see item 33).

Item 10 - subsection 4(1) (definition of edited copy)
This item amends the existing definition of 'edited copy' to have the
meaning given by section 22 (see item 17).

Item 11 - subsection 4(1) (paragraph (a) of the definition of exempt
document)
Item 11 amends the existing definition of 'exempt document' to have the
meaning given by proposed section 31B which defines when a document is
exempt for the purposes of Part IV (see item 22).

Item 12 - subsection 4(1)
This item inserts a definition of 'run out' which is a term used in
connection with review rights given to certain third parties whom an agency
or Minister is obliged to consult upon considering requests for access to
documents containing information concerning the third party (see item 21,
proposed subsections 26A(4), 27(7) and 27A(6)).

Item 13 - at the end of section 4
The purpose of this proposed amendment is to clarify that information
communicated in confidence pursuant to any treaty or formal instrument on
the reciprocal protection of classified information between the
Commonwealth Government or an authority of the Commonwealth and a foreign
government, an authority of a foreign government or an international
organisation is information that meets the criteria for exemption in
paragraph 33(b).

Item 14 - after section 11
The purpose of proposed section 11A is to establish the basic rule that
where a valid request for a document has been made (that is, a request that
complies with subsection 15(2)), and any required charges have been paid,
an agency or Minister must give access to the document except if the
document is an exempt document.  Proposed subsections 11A(1), (2) and (3)
essentially restate the requirement in existing subsection 18(1) of the Act
(which is proposed for repeal at item 16).

To improve the narrative flow of the Act, the requirement to give access to
a document is proposed to be inserted after section 11 which gives every
person a legally enforceable right of access to a document of an agency or
an official document of a Minister (other than an exempt document).

Proposed subsection 11A(4) essentially restates the rule in existing
subsection 18(2) that an agency or Minister is not required to give access
to a document at a particular time, if at that time, the document is an
exempt document.  The document must be exempt at the time the access
request is determined.  The reason for maintaining confidentiality in a
document may not be on-going (in other words, just because a document is
exempt at one point in time it may not be exempt at a later time due to
changed circumstances or passage of time).

Proposed subsection 11A(5) introduces a single form of public interest test
that applies to those exemptions (called public interest conditional
exemptions) in proposed Division 3 of Part IV.  The proposed test is
weighted in favour of giving access to documents so that the public
interest in disclosure remains at the forefront of decision making.  It is
not enough to withhold access to a document if it meets the criteria for an
exemption in Division 3 of Part IV.  Where a document meets the initial
threshold of being conditionally exempt (see item 9, subsection 4(1)), it
is then necessary for a decision maker to apply the public interest test
proposed in subsection 11A(5).  The starting point is that access must be
given to conditionally exempt documents unless, to do so, would be contrary
to the public interest.

It is intended that application of the public interest test will involve
weighing up factors for and against disclosure for the purpose of
determining whether access would, on balance, be contrary to the public
interest.  In this process a decision maker needs to identify factors
favouring disclosure and factors not favouring disclosure in the
circumstances and to determine the comparative importance to be given to
these factors.  Under item 20 (proposed paragraph 26(1)(aa)) if access to a
conditionally exempt document is to be refused the written notice of the
decision must include the public interest factors taken into account in
making the decision to refuse access.

In a similar vein to proposed subsection 11A(4), a decision to refuse
access to a document because it would be contrary to the public interest
for the purposes of proposed subsection 11A(5) depends on the circumstances
relevant at the time of the decision.  A document that is exempt at one
point in time may not be exempt at a later time.

Proposed subsection 11A(6) establishes a rule when a document satisfies
grounds for exemption under both proposed Division 2 of Part IV
(exemptions) and Division 3 of Part IV (public interest conditional
exemptions).  In that case, the rule is that an agency or Minister is not
required to give access to the document.
Proposed subsection 11B deals with factors for the purposes of working out
whether access to a conditionally exempt document would on balance be
contrary to the public interest.  Proposed subsection 11B(2) clarifies that
factors, other than those factors addressed in subsection 11B, may be
relevant for the purpose of applying the public interest test in subsection
11A(5).
Proposed subsection 11B(3) lists factors that favour disclosure of
documents.  The list is non-exhaustive and other factors favouring access
may be taken into account if relevant to the question of giving access to a
document in the circumstances.
Proposed subsection 11B(4) lists factors that must not be taken into
account in deciding whether access to a document would, on balance, be
contrary to the public interest.  The factors are ordinarily identified as
arguments against giving access to a document.  The effect of this
provision is that decision makers may not rely on the listed factors for
the purposes of weighing up whether a greater public interest lies in
maintaining confidentiality in a document than in giving access to the
document.
Proposed subsection 11B(5) provides that an agency or Minister must have
regard to any guidelines issued by the Information Commissioner for the
purposes of applying the public interest test.  The Information
Commissioner will have power to issue guidelines under proposed section 93A
(item 57 Schedule 4).  The Bill does not list factors which would favour
not giving access for the purposes of the public interest test.  Some
public interest conditional exemptions include criteria which require a
finding of harm, such as disclosure would, or could reasonably be expected
to, cause damage to certain interests, or would have a substantial adverse
effect on certain interests, or would, or could reasonably be expected to,
prejudice certain interests.  Where a decision maker is satisfied that an
initial harm threshold is met that finding will be a factor against giving
access to a document.
Item 15 - before section 12
Proposed subsection 11C introduces a requirement for an agency or Minister
to publish information which has been disclosed in response to an access
request, within 10 working days after the day on which a person is given
access to the document.  The requirement is intended to reinforce the
active publication rationale which underlies the proposed information
publication scheme in Schedule 2.  The requirement does not apply when the
information that is given to a person is:
    . personal information about any person if it would be unreasonable to
      publish the information;
    . information about the business, commercial, financial or professional
      affairs of any person if it would be unreasonable to publish the
      information;
    . other information of a kind determined by the Information Commissioner
      if it would be unreasonable to publish the information; or
    . any information if it is not reasonably practicable to publish the
      information because of the extent of modifications that need to be
      made to delete information of the kind mentioned above.
The latter case (paragraph 11C(1)(d)) is intended to address the
circumstance where access is given to a document that contains a mixture of
information some of which should not be published (for example, because it
is the applicant's personal information).  It will not always be reasonable
to publish the information because of the work involved in undertaking
deletions or because the redacted copy may hold limited value in its
publication or both.
Proposed subsection 11C(2) gives the Information Commissioner a
discretionary power to exclude other categories of information from the
publication requirement.  A determination made for this purpose is a
legislative instrument for the purposes of the Legislative Instruments Act
2003.  An example may be where the requirement to publish the information
serves to inhibit access being given to information because access is
dependent on a third party consenting to disclosure of information about
the third party.  The third party may agree to give access to a particular
applicant, but may not agree if the information is to be published to the
world.  The Information Commissioner will be able to inquire whether
particular circumstances warrant exclusion.
Like the proposed publication scheme in Schedule 2, proposed subsection
11C(3) provides that the information is to be published to the public
generally on a website.  If the information cannot readily be published on
a website, the website should give details of how the information may be
obtained.
Proposed subsections 11C(4) and 11C(5) permit an agency to impose a charge
for accessing information.  These charges are separate from processing
charges imposed for processing an access request under Part III of the FOI
Act and set out in regulations.  Proposed subsection 11C(4) makes it clear
that an agency cannot charge a person for simply accessing information from
the website.  Charges may be imposed if the agency incurs a specific
reproduction or incidental cost in providing access.  This would include a
situation where, for example, the information was contained in a recording
that could not be readily converted to electronic format for uploading to
the website, and the agency incurred costs in having that recording
transcribed.  Another example would be where a hard copy of a report is
requested when the report is also available online.
The provision does not specify how long an agency or Minister should keep
information posted on a website.  Some information will have more enduring
interest than other information.  Rather than specifying a minimum period
for publication, it is intended that the posting period should be flexible.
 The Information Commissioner may issue guidance to agencies in respect of
this matter (the Information Commissioner has power to issue guidelines
under proposed section 93A item 57 Schedule 4).
Item 16 - section 18
This item repeals section 18.  The effect of section 18 (general rule for
mandatory access) is replicated in proposed section 11A.

Item 17 - section 22
This item redrafts an existing provision in the FOI Act to improve
readability.  It is not intended to change the scope of this provision.
Section 22 requires that access be given to an edited copy of a document if
it is reasonably practicable to delete exempt matter (that falls within the
scope of the applicant's request) or irrelevant matter (that falls outside
the scope of the applicant's request), unless it is apparent that the
applicant would not wish to have access to the edited copy.

Item 18 - subsections 25(1) and (2)
This item amends section 25 so that the right to neither confirm nor deny
the existence or non-existence of certain exempt documents does not apply
to the exemption for documents affecting relations with states (section 33A
in the existing Act and proposed section 47B in the Bill).  This item
implements recommendation 42 of the Open government report.

Items 19 and 20 - paragraph 26(1)(a)
These items insert a new requirement into the content of the notice that
must be given to an applicant when a decision is made to refuse access to a
document.  The effect of proposed paragraph 26(1)(aa) is that the reasons
must include the public interest factors taken into account if access has
been refused for a public interest conditional exemption.  (Under the
existing Act, a requirement to state the public interest grounds on which
access has been refused only applies under the internal working documents
exemption at section 36.)  These items implement recommendation 39 of the
Open government report.

Item 21 - sections 26A, 27, 27A and 28
Section 26A (consultation requirement in respect of documents likely to
affect Commonwealth-State relations) has been redrafted to improve
readability and to insert terminology that is consistent with the
application of the proposed single public interest test to the Commonwealth-
State relations exemption (section 33A in the existing Act and proposed
section 47B in the Bill).

Under existing section 27, where a request is received for a document
containing information concerning another person's business or professional
affairs, or the business, commercial or financial affairs of an
organisation or undertaking, a decision to grant access to the document
must not be made unless, where it is reasonably practicable to do so, the
agency or Minister gives the third party a reasonable opportunity to make
submissions that the document is exempt under the business affairs
exemption.  Proposed section 27 qualifies that requirement so that
consultation is only necessary where it appears to the agency or Minister
that the business might reasonably wish to make a contention that the
document is exempt under the business affairs exemption.  Under the
existing provision consultation is necessary even for a decision to give
access to simple payment receipts, such as taxi receipts.  The proposed
qualification currently exists in relation to the consultation requirement
for documents containing personal information about third parties (section
27A).

Like existing section 27A, proposed subsection 27(3) lists certain matters
that must be taken into account by an agency or Minister in determining
whether a person or organisation might reasonably wish to contend that a
document is exempt under the business affairs exemption.  The effect of
proposed paragraph 27A(3)(d) is that the list of matters relevant to making
this determination is not exhaustive.

Section 27A (consultation requirement with third parties about their
personal information) is redrafted to improve readability and to insert
terminology that is consistent with the application of the proposed single
public interest test to the personal privacy exemption (section 41 in the
existing Act and proposed section 47F in the Bill).  Existing section 27A
is also re-drafted to improve readability.

This item also repeals section 28 which deals with Information Access
Offices (which are the regional offices of the National Archives of
Australia).  Under subsection 9(2), an agency is required to make certain
operational information available for inspection (and purchase) at
Information Access Offices.  Under the proposals to amend Part II of the
FOI Act (see Schedule 2), operational information is to be published on
websites (or details given of how access may be obtained).  Particularly
with new technologies, access to documents will normally be able to be
facilitated by means that do not require physical inspection, which renders
provision for Information Access Offices otiose.

Item 22 - before section 32
The table in proposed section 31A that is inserted by this item provides a
guide on how the Act applies to documents that are exempt, conditionally
exempt or contain exempt matter under the Act.  It is intended to serve as
an aid to applying the Act.

A document is made exempt under the Act if it is exempt for the purposes of
Part IV (which sets out the exemption provisions), if it is excluded from
the operation of the Act by virtue of section 7, or is an official document
of a Minister that contains matter not relating to the affairs of an
agency.  Proposed section 31B defines when a document is exempt for the
purposes of Part IV of the Act.  Part IV is re-organised so that exemptions
not subject to the proposed single public interest test are grouped
together into Division 2 exemptions, and exemptions that are subject to the
test are grouped together into Division 3 public interest conditional
exemptions.

Item 23 - section 32
An amendment is made to section 32 (interpretation provision) to insert
terminology that is consistent with the application of the proposed single
public interest test to exemptions subject to that test.

Item 24 - after section 32
This item inserts a heading as part of the restructuring of the exemption
provisions in Part IV.

Item 25 - at the end of section 33
Item 25 inserts a note for section 33 which makes a cross reference to
proposed subsection 4(10) (inserted by item 13 of this Schedule).

Item 26 - sections 33A to 36
Commonwealth-State relations exemption
Section 33A (documents affecting relations with States) is repealed by this
item as a consequence of the restructuring of exemption provisions into
exemptions and public interest conditional exemptions.  It is inserted as
section 47B (a public interest conditional exemption) under item 33.

Cabinet exemption
Proposed section 34 preserves the Cabinet exemption but introduces some
amendments to its scope. The Cabinet exemption is concerned with protecting
information central to the Cabinet process and ensuring that the principle
of collective ministerial responsibility (central to the Cabinet system) is
not undermined.  Subject to a dominant purpose qualification, proposed
section 34 will apply the exemption to:
    . Cabinet submissions that are proposed for submission to Cabinet but
      are never submitted ('was proposed' in subparagraph 34(1)(a)(i));
    . a document that is a briefing prepared for a Minister on a Cabinet
      submission (proposed paragraph 34(1)(c)); and
    . a document that is a draft of a Cabinet submission, official record of
      the Cabinet or a briefing prepared for a Minister on a Cabinet
      submission (proposed paragraph 34(1)(d)).

A Cabinet submission will only be exempt if it was brought into existence
for the dominant purpose of submission to the Cabinet for its
consideration.  A briefing will only be exempt if it was brought into
existence for the dominant purpose of briefing a Minister on a Cabinet
submission.  Proposed subsection 34(4) introduces a further limit on the
Cabinet exemption by making it clear that a document is not exempt only
because it is attached to a Cabinet submission, briefing or a document
containing information that would reveal a Cabinet deliberation or
decision.  If, at the time a report is brought into existence it is
intended for public release and Cabinet's consideration is incidental to
that main purpose, the report will not be covered by the Cabinet exemption
because it will not have been brought into existence for the dominant
purpose of submission to the Cabinet.  Attaching the document to a Cabinet
submission will not make the report exempt under the Cabinet exemption.

Proposed subsection 34(2) exempts a document to the extent that it is a
copy or part of, or contains an extract from, a document that is exempt
under proposed subsection 34(1).  Similar provision is made in existing
paragraph 34(1)(c).

Proposed subsection 34(3) exempts a document to the extent it contains
information which would reveal a Cabinet deliberation or decision except if
the deliberation or decision has been officially disclosed.  It is intended
that the exemption would still be available to any part of the document
that contains a deliberation or decision that has not been publicly
announced.

Proposed subsection 34(5) confirms that a document by which a decision of
the Cabinet is officially published (for example a media release) is not an
exempt document.  This reflects an existing qualification in section
34(1)(d).

Proposed subsection 34(6) preserves the effect of existing subsection
34(1A).

Executive Council documents exemption
The Executive Council documents exemption is repealed (section 35) and it
is not replaced in the Bill.  The repeal of this exemption implements
recommendation 50 of the Open government report.  The report's
justification for repeal was that Executive Council documents that warrant
exemption can be withheld under other exemption provisions such as the
exemption for personal privacy or the exemption for international
relations.

Internal working documents exemption
Section 36 (internal working documents exemption) is repealed by this item
as a consequence of the restructuring of exemption provisions into
exemptions and public interest conditional exemptions.  It is inserted as
proposed section 47C (a public interest conditional exemption) under item
33.

Item 27 - sections 39, 40 and 41
The exemptions addressed in section 39 (documents affecting financial or
property interests of the Commonwealth), section 40 (documents concerning
certain operations of agencies) and section 41 (documents affecting
personal privacy) are repealed by this item as a consequence of the
restructuring of exemption provisions into exemptions and public interest
conditional exemptions.  All these exemptions are inserted as public
interest conditional exemptions under item 33.  Section 39 is inserted as
proposed section 47D, section 40 is inserted as proposed section 47E and
section 41 is inserted as proposed section 47F.

Item 28 - subsection 42(2)
Proposed subsection 42(2) introduces a new qualification to the legal
professional privilege exemption and has the effect of confirming that the
exemption is not available if privilege has been waived.  This proposed
amendment implements recommendation 67 of the Open government report.

Proposed subsection 42(3) ensures that operational information that is used
by agencies in making decisions or recommendations affecting members of the
public (within the meaning of proposed section 8A at item 3 Schedule 2)
cannot be exempt on grounds of legal professional privilege under
subsection 42(1) (because it contains information that would otherwise be
exempt under subsection 42(1)).  The provision is intended to replicate the
effect of existing subsection 42(2).

Item 29 - sections 43, 43A and 44
The exemptions addressed in section 43 (documents relating to business
affairs), section 43A (documents relating to research) and section 44
(documents affecting national economy) are repealed by this item as a
consequence of the restructuring of exemption provisions into exemptions
and public interest conditional exemptions.  All these exemptions are
inserted as public interest conditional exemptions under item 33.  Section
43A is inserted as proposed section 47H, section 44 is inserted as proposed
section 47J and section 43 is inserted as proposed section 47G (other than
that part of the exemption applicable to documents disclosing trade secrets
or commercially valuable information which is not subject to a public
interest test and inserted as new section 47).

Items 30 and 31 - subsection 45(2)
These items are consequential as a result of restructuring the exemption
provisions into exemptions and public interest conditional exemptions.
They are not intended to make any change in substance.

Item 32 - section 47
Documents arising out of companies and securities legislation
This item repeals the exemption for documents arising out of companies and
security legislation, which implements recommendation 72 of the Open
government report.

Documents disclosing trade secrets or commercially valuable information
Proposed section 47 replicates the exemption that applies to documents that
would disclose trade secrets under existing paragraph 43(1)(a) or would
disclose any other information having a commercial value that would be, or
could reasonably be expected to be, destroyed or diminished if disclosed
under existing paragraph 43(1)(b).  These grounds for exemption are not
proposed to be subject to the public interest test.  Information of this
type has very high commercial value and includes information that gives a
business an advantage over its competitors.  The remaining grounds for
exemption under existing section 43 (business affairs exemption) are
proposed to be made subject to the public interest test (see proposed
section 47G).

Proposed subsection 47(2) replicates an existing provision in
subsection 43(2) and makes clear that the exemption does not apply where
access is sought by the person or organisation to whom the information
concerns.

Proposed subsection 47(3) replicates an existing provision in
subsection 43(3).

Item 33 - at the end of Part IV
Division 3 of Part IV contains the public interest conditional exemptions.
A document is 'conditionally exempt' if it meets the criteria in any of
these exemptions.  Such a document is only exempt if access to the document
would, on balance, be contrary to the public interest for the purposes of
the proposed public interest test in subsection 11A(5).  Some public
interest conditional exemptions include criteria which require a finding of
harm.  Where a decision maker is satisfied that an initial harm threshold
is met that finding will be a factor against giving access to a document
for the purposes of the public interest test.

Commonwealth-State relations exemption
Proposed section 47B preserves the Commonwealth-State relations exemption
under existing section 33A.  This exemption is currently subject to a
public interest test.

Deliberative processes exemption
Proposed section 47C preserves the internal working documents exemption
under existing section 36.  The title of the provision is changed to
deliberative processes which implements recommendation 51 of the Open
government report.  This exemption is currently subject to a public
interest test.

Financial or property interests of the Commonwealth
Proposed section 47D preserves the exemption under existing section 39.
This exemption is currently subject to a public interest test.

Certain operations of agencies
Proposed section 47E preserves the exemption under existing section 40,
with the exception that one ground for exemption is repealed.  The Open
government report recommended that paragraph 40(1)(e) be repealed on the
basis that other exemptions were available if protection from disclosure
was needed.  That paragraph provides that a document is exempt where
disclosure would, or could reasonably be expected to have a substantial
adverse effect on the conduct by or on behalf of the Commonwealth or an
agency of industrial relations.  Exemption grounds that may be relevant to
protecting information relating to industrial relations matters include
paragraph 40(1)(d) (where disclosure would or could reasonably be expected
to have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency (proposed paragraph 47E(d)), and section 41
(documents affecting personal privacy (proposed section 47F)).  This
exemption is currently subject to a public interest test.

Personal privacy exemption
Proposed section 47F preserves the exemption under existing section 41, but
makes some changes.  The personal privacy exemption is to be made subject
to the public interest test (it is not currently subject to a public
interest test).  The effect of the application of the public interest test
is to ensure that the public interest in disclosure remains at the
forefront of decision making.

Proposed subsection 41(2) identifies matters that must be taken into
account by an agency or Minister in determining whether disclosure of a
document would involve unreasonable disclosure of personal information.  It
also makes clear that a decision maker may have regard to any other matter
considered relevant to that question.  Paragraph 47F(2)(d) clarifies that
the list of matters relevant to making this determination is not
exhaustive.  The matters are similar to those matters that must be taken
into account for the purposes of consulting an affected third party under
existing subsection 27A(1A).

Under existing subsection 41(4), an agency or Minister is required to
notify a qualified person, if reasonably practicable, if access has been
given to a document containing personal information of a medical or
psychiatric nature about an applicant that has originated from the
qualified person.  That procedural requirement is repealed which implements
recommendation 64 of the Open government report.  The justification for
repeal was that there is no need for the requirement.  An agency may be
required to consult the qualified person before disclosing the document
under section 27A (documents affecting personal privacy).

The definition of 'qualified persons' is also amended to replace 'marriage
guidance counsellor' with the broader term of 'counsellor'.

Business exemption
Proposed section 47G preserves the exemption under existing subsection
43(1)(c), but makes this exemption subject to the public interest test.
The effect of the application of the public interest test is to ensure that
the public interest in disclosure remains at the forefront of decision
making.  The other exemption grounds under the existing business affairs
exemption are not proposed to be made subject to the public interest test
(see item 32 proposed section 47).

Research exemption
Proposed section 47H preserves the exemption for documents relating to
research under existing section 43A, but makes this exemption subject to
the public interest test.  The effect of the application of the public
interest test is to ensure that the public interest in disclosure remains
at the forefront of decision making.  The exemption can only be claimed by
an agency specified in Schedule 4 of the FOI Act.  The only agencies
prescribed for that purpose are the Commonwealth Scientific and Industrial
Research Organisation and the Australian National University.

The economy exemption
Proposed section 47J replaces the economy exemption under existing section
44.  Proposed section 47J better reflects the modern economic policy
responsibilities of the Government, by focusing on those areas of the
economy which the Government controls and better reflecting the nature of
the Government's role in developing and implementing policy action on
matters affecting the Australian economy.  The existing section 44 is not
currently subject to a public interest test.  The section 47J exemption is
conditional as it is subject to the public interest test, to ensure that
the public interest in disclosure remains at the forefront of decision
making.

The economy exemption in proposed section 47J reflects the need for the
Government to be able to maintain the confidentiality of certain
information if it is to carry out its economic policy responsibilities,
including the development and implementation of economic policy in a timely
and effective manner.  Proposed section 47J requires a decision maker to
focus on the consequences of disclosure, being the expected effect on
Australia's economy.  Paragraphs 47J(1)(a) and 1(b) describe circumstances
where a substantial adverse effect would, or could reasonably be expected
to, result from disclosure. It is anticipated that these may include the
following:

. where the possible premature disclosure of information about Government
  proposals, policy development and decision-making processes could
  compromise the ability of the Australian Government to obtain access to
  information;
. where the disclosure of information, including estimates and modelling,
  may adversely affect the performance of the Australian economy by
  undermining confidence in markets, financial frameworks or institutions;
  or
. where the disclosure of advice on the performance of a particular market
  might reveal information about its performance that could distort the
  Australian economy by influencing investment decisions or giving
  particular individuals or businesses a competitive advantage.

Proposed subsection 47J(2) makes it clear that an adverse impact on
Australia's economy is not limited to considerations of the economy as a
whole; rather, it includes potential adverse impacts on a particular sector
or region within Australia. For example, the disclosure of the results of
information regarding the impacts of economic conditions or policies on
particular sectors of the market may distort investment decisions within
that sector and, in turn, impact adversely on the Government's ability to
develop and implement economic policies more generally.

Item 34 - Schedule 4
This item is a consequential amendment arising from item 33 (amendment
proposed to the research exemption).

Part 3 - Other exemption amendments

Item 35 - paragraph 33(1)(b) of the Archives Act
Under existing paragraph 33(1)(b) of the Archives Act a document is exempt
if it contains information communicated in confidence by a foreign
government, authority or international organisation to the Commonwealth
Government and disclosure of the information would constitute a breach of
that confidence.  Tension arises where a foreign government objects to
disclosure of records, and apart from the objection no other evidence is
available to support maintaining confidentiality of the records.  Under
proposed paragraph 33(1)(b), where a foreign entity advises that the
document is still confidential, the decision maker (the Archives) must be
satisfied that a reasonable basis exists for maintaining the confidence of
the information in order to invoke the exemption.  (Under item 2 of this
Schedule the open access period for the purposes of the Archives Act is
proposed to be brought forward from 30 years to 20 years.)

Items 36 and 37 - paragraphs 50A(2)(b) and 50A(3)(b) of the Archives Act
The Freedom of Information (Removal of Conclusive Certificates and Other
Measures) Act 2009 inserted new section 50A into the Archives Act which
requires the AAT to request the Inspector-General of Intelligence and
Security to give evidence in certain proceedings.  Items 36 and 37 (being
amendments to paragraph 50A(2)(b)) are consequential to the proposed
amendment at item 35.

Item 38 - subsection 34(1) of the Privacy Act
Item 38 is a consequential amendment arising from the proposed amendment at
item 18 (amendment to section 25 of the FOI Act so that the right to
neither confirm nor deny the existence or non-existence of certain exempt
documents does not apply to the existing exemption for documents affecting
relations with states).

Part 4 - Application provisions

Item 39 - application - Part 2
The effect of this application provision is that an amendment made by an
item in Part 2 of Schedule 3 applies to requests for access (made under
section 15 of the FOI Act) that are received at or after the commencement
of that item.

Item 40 - application - items 35, 36 and 37
The effect of this application provision is that the amendments made by
items 35, 36 and 37 will apply to requests for access (made in accordance
with section 40 of the Archives Act) that are received by the Archives at
or after the commencement of those items.

Schedule 4  - Information Commissioner amendments

Part 1 - Main amendments, FOI Act

Items 1 to 20 - subsection 4(1)
These items amend the interpretation provision of the FOI Act to insert
definitions in connection with proposals relating to the review of FOI
decisions and investigation of complaints relating to the handling of FOI
requests.  The proposed amendments are substantially signposts to other
provisions which define the various proposed terms.

Items 21 and 22 - section 12
Subsections 12(2) to (4) are repealed because they are transitional in
nature and their operation is spent.  Subsection 12(2) provides that there
is no right to access a document that became a document of an agency or an
official document of a Minister more than 5 years before 1 December 1982
(commencement of the FOI Act).  Documents of this age would now be in the
open access period under the Archives Act.

Item 23 - subsection 21(3)
The repeal of this provision arises as a consequence of the proposal to
introduce Information Commissioner review.  The effect of subsection 21(3)
is that a decision to defer access to a document on the ground in paragraph
21(1)(d) is not subject to review by the AAT.  If paragraph 21(1)(d)
applies it is because a Minister considers the document is of such general
public interest that the Parliament should first be informed of its
contents, in which case the document must be tabled in Parliament within 5
sitting days of either House of the Parliament.  The effect of subsection
21(3) is preserved by proposed paragraph 53A(d) (item 34).

Item 24 - subparagraph 26(1)(c)(ii)
This is a consequential amendment arising from the proposal to give the
Information Commissioner the function of investigating complaints
concerning the handling of FOI requests under proposed Part VIIB (item 49).


Item 25 - paragraph 26(1)(c)
This provision clarifies that the notice of a decision to refuse access to
a document must include information concerning the applicant's rights with
respect to internal review and Information Commissioner review.

Item 26 - paragraph 29(9)(b)
This is a consequential amendment arising from the proposal to give the
Information Commissioner the function of investigating complaints
concerning the handling of FOI requests under proposed Part VIIB (item 49).


Item 27 - subsection 29(9)
This provision clarifies that the notice of a decision to reject a
contention from the applicant that a charge should be reduced or not
imposed must include information concerning the applicant's rights with
respect to internal review and Information Commissioner review.

Item 28 - section 31
Section 31 is amended as a consequence of the proposal to give the
Information Commissioner a function of undertaking review of FOI decisions.
 Section 31 has also been redrafted to improve readability.  The purpose of
section 31 is to suspend the period for making a decision on an access
request pending payment of a charge that has been notified to the applicant
(or an outcome on any review of the decision to impose a charge).

Item 29 - after section 51D
The effect of proposed section 51DA is that an agency or Minister is deemed
to have refused to amend or annotate a record of personal information if
the agency or Minister has not given notice of a decision on an application
for amendment or annotation (made under section 48) within 30 days of
receiving the request.

Under proposed subsection 51DA(2), the deemed refusal is taken to be a
decision made personally by the principal officer of the agency or the
Minister on the last day of the decision period and notice is taken to have
been given to the applicant on that same day.  A consequence of a deemed
refusal decision is that an applicant may directly make an application for
Information Commissioner review (as an access refusal decision under
proposed paragraph 54L(2)(a) - an 'access refusal decision' is defined in
proposed section 53A to include a decision to refuse to annotate or amend a
record).  This provision is similar to the effect of existing subsection
56(1A) of the FOI Act.

The effect of proposed subsections 51DA(3)-(5) is that the Information
Commissioner is given a discretionary power to extend the period for making
an initial decision on an application.  The rationale underlying this
provision is that the extension may avoid the need for an applicant to
lodge an application for Information Commissioner review.  The Information
Commissioner may extend the period for such a period considered to be
appropriate and may also impose conditions.  A condition may be that the
agency or Minister must give notice of the extended time to the applicant.


If the Information Commissioner allows an extension, the effect of proposed
subsection 51DA(6) is that a decision is not deemed to have been refused
(providing the agency or Minister makes a decision within the extended time
period and complies with any condition).  However, if the agency or
Minister does not comply, then the effect of proposed subsection 51DA(7) is
that a deemed refusal decision is taken to apply.  Additionally, under
proposed subsection 51DA(8), the Information Commissioner does not have the
power to allow a further extension of time to make an initial decision.  In
this case, it would be open to the applicant to make an application for
Information Commissioner review.

Item 30 - Part VI (heading)
The provisions dealing with internal review of decisions on an access
request made by an agency or Minister will be dealt with in a separate Part
VI.  (Under the existing Act Part VI covers both internal review and review
by the AAT.)

Item 31 - before section 53
This item inserts a guide to proposed Part VI (internal review of
decisions) which is intended to aid readability.  The guide notes that a
decision made personally by a principal officer of an agency or by a
Minister is not subject to internal review.  This is the case under
existing section 54 of the FOI Act.

Item 32 - section 53
Item 32 is a consequential amendment arising from the proposal to separate
the different forms of review into individual Parts under the Act.  It
ensures that the interpretation provision applies to all forms of review.

Item 33 - section 53
This item is a consequential amendment arising from the proposal to limit
the operation of section 25 of the FOI Act so that it does not apply to a
document that is exempt under the Commonwealth-State relations exemption
(existing section 33A and proposed section 47B under the Bill) (see item 18
Schedule 3).  The reference to the existing Executive Council exemption
(section 35) is removed as a consequence of the proposal to repeal that
exemption (see item 26 Schedule 3).

Item 34 - sections 54 to 57
This item addresses the main (new) provisions for internal review and
inserts Part VII which gives the Information Commissioner the function of
undertaking external merits review of FOI decisions.

Section 54 (internal review) is repealed but its effect is preserved by the
provisions inserted in this item.  The requirement to pay an application
fee for internal review is not preserved as it is a proposal in the Bill to
repeal all application fees (other than for AAT review).

Section 55 (applications to the AAT) is repealed as a consequence of the
proposal to introduce Information Commissioner review.  The right of
application to the AAT is retained in new section 57A.

Section 56 (applications to Tribunal where decision delayed) is repealed as
a consequence of the proposal to introduce Information Commissioner review.
 Subsection 56(2) has the effect that if an applicant makes a complaint to
the Ombudsman concerning a failure to make a decision within the required
decision period, an applicant cannot make an application for review to the
AAT (on the basis that it is a deemed refusal) until the Ombudsman has
informed the applicant of the result of the investigation.  This provision
is not preserved in the Bill.  Under measures in the Bill, the Information
Commissioner is to be given the function of investigating complaints about
the handling of FOI requests and the function of undertaking review of FOI
decisions.  These functions provide different remedies.  A complaint about
handling, such as delay, could be investigated concurrently with an IC
review of a decision on a request (including a deemed refusal decision).

The provisions in subsections 56(3) and (4), which essentially permit the
Ombudsman to give a certificate that has the effect of deeming a decision
to have been made refusing access to a document, are not preserved in the
Bill on the basis that they have limited or no utility.  The power is
dependent on a person making a complaint before the expiration of the
period for making an initial decision and a finding by the Ombudsman of
unreasonable delay notwithstanding that the initial period for making a
decision has not expired.

Section 57 (complaints to Ombudsman) is repealed as a consequence of the
proposal to give the Information Commissioner a function of investigating
complaints about the handling of FOI requests (item 49).

Part VI - Internal review provisions
Proposed section 53A defines an 'access refusal decision'.  Proposed
section 53B defines an 'access grant decision'.  The former is concerned
with the review rights for applicants.  The latter is concerned with the
review rights of certain third parties affected by a decision to give
access to a document.  These terms are also used in connection with
Information Commissioner review and AAT review.  Decisions of this kind are
amenable to internal review by virtue of proposed section 54 (internal
review access refusal decision) and proposed section 54A (internal review
access grant decision).  These provisions establish the right for an
applicant to apply for internal review of those decisions.  The Bill does
not change the existing rule that no internal review application can be
made for a decision made by a Minister or made personally by a principal
officer of an agency.

An applicant does not have to apply for internal review before applying for
external review by the Information Commissioner (proposed paragraphs
54L(2)(a) and 54M(2)(a) provide that an access refusal decision and an
access grant decision (respectively) are decisions that may be reviewed by
the Information Commissioner).  Under the existing Act, while internal
review is optional where a third party seeks to challenge a decision to
give access to a document, it is not optional where access has been refused
to a document.  In the latter case, under the existing Act, an applicant is
required to apply for internal review in respect of a decision of an agency
(other than a decision made personally by a principal officer of an agency)
before applying to the AAT.  By making internal review optional, agencies
should be encouraged to make the best decision at first instance.

The 'access refusal decisions' in proposed section 53A replicate the
decisions which are subject to internal review in existing subsection
54(1).  Existing paragraph 54(1)(e) (a decision under section 30A relating
to remission of an application fee) is not repeated in proposed section 53A
as a consequence of the proposal in the Bill to repeal all application fees
(other than for AAT review).

The 'access grant decisions' in proposed section 53B replicate the
decisions which are subject to internal review under existing subsections
54(1C) (right of review to a State concerning a decision to give access to
State related information), 54(1D) (right of review to a person or
organisation concerning a decision to give access to business information)
and 54(1E) (right of review to a person concerning a decision to give
access to personal information).  Proposed section 53C defines who is an
affected third party for the purposes of making a request for internal
review on an access grant decision under proposed section 54A.

Proposed section 54B preserves the effect of existing subsections 54(1A),
54(1B) and 54(1G).

Proposed subsection 54C(2) preserves the requirement under existing
subsection 54(2) that a decision maker who is not the original decision
must undertake an internal review.

Proposed subsection 54C(3) requires a decision on an internal review to be
made within 30 days after the application was received by an agency.  The
existing provision does not express a time period for making an internal
review decision.  However, a 30 day period is implied by existing
subsection 55(3) which permits an applicant to make an application to the
AAT if a decision on internal review is not made within 30 days.

The effect of proposed section 54D is that an agency is deemed to have
affirmed the original decision if the agency has not given notice of a
decision on an internal review application (made under proposed section
54B) within 30 days of receiving the application.

Under proposed subsection 54D(2), the deemed affirmation of the original
decision is taken to be a decision made personally by the principal officer
of the agency on the last day of the decision period, and notice is taken
to have been given to the applicant on that same day.  A consequence of a
deemed affirmation decision is that an applicant may directly make an
application for Information Commissioner review (as an access refusal
decision under proposed paragraph 54L(2)(a) or as an access grant decision
under proposed paragraph 54M(2)(a)).  This provision is similar to the
effect of existing subsection 55(3) of the FOI Act.

The effect of proposed subsections 54D(3) to (5) is that the Information
Commissioner is given discretionary power to extend the period for making
an internal review decision, upon application from an agency.  The
rationale underlying this provision is that the extension may avoid the
need for an applicant to lodge an application for Information Commissioner
review.  The Information Commissioner may extend the period for such a
period considered to be appropriate and may also impose conditions.  A
condition may be that the agency or Minister must give notice of the
extended time to the applicant.

If the Information Commissioner allows an extension, the effect of proposed
subsection 54D(6) is that a decision is not deemed to have been affirmed
(providing the agency makes a decision within the extended time period and
complies with any condition).  However, if the agency does not comply, then
the effect of proposed subsection 54D(7) is that a deemed affirmation
decision is taken to apply.  Additionally, under proposed subsection
54D(8), the Information Commissioner does not have the power to allow a
further extension of time to make an internal review decision.  In this
case, it would be open to the applicant to make an application for
Information Commissioner review.

Proposed section 54E preserves the effect of existing subsection 54(3).

Part VII - Review by Information Commissioner

Proposed section 54F is a guide to proposed Part VII (review by Information
Commissioner) which is intended to aid readability.

Proposed sections 54G to 54K define key concepts and terms for the purposes
of Part VII.

Proposed section 54L establishes the right for an applicant (who has
requested access to a document) to apply for Information Commissioner
review in respect of those decisions listed in proposed subsection 54L(2)
(access refusal decisions).  All the decisions which are amenable to AAT
review under existing subsection 55(1) of the FOI Act, with the exception
of paragraph 55(1)(e), are made amenable to Information Commissioner
review.  Existing paragraph 55(1)(e) (a decision under section 30A relating
to remission of an application fee) is not preserved as a consequence of
the proposal in the Bill to repeal all application fees (other than for AAT
review).

In variation to the existing Act, an applicant is not required to apply to
an agency for internal review before making an application for review by
the Information Commissioner.  The effect of paragraph 54L(2)(a) is that an
applicant may apply for Information Commissioner review in respect of an
access refusal decision without applying for internal review.

Proposed section 54M establishes the right for certain third parties (who
are affected by a decision to give access to a document) to apply for
Information Commissioner review in respect of those decisions listed in
proposed subsection 54M(2).  The access grant decisions which are amenable
to Information Commissioner review are the same decisions that are
presently subject to AAT review (existing sections 58F, 59 and 59A which
are proposed for repeal by item 40).  Proposed paragraph 54M(2)(a) makes an
'access grant decision' (a decision of the kind in proposed section 53B)
directly subject to Information Commissioner review.  This preserves the
existing policy that internal review is not a pre-requisite to AAT review
for an access grant decision.

Proposed section 54N deals with the requirements for making an application
for Information Commissioner review.  Under subsection 54N(1), an
application must include a copy of the decision (made by the agency or
Minister) which is the subject of the review application.  This will enable
the Information Commissioner to readily identify the agency or Minister who
is the respondent party and the matters in dispute.  If a person does not
receive a copy of a decision but proposed section 15AC (item 30 of Schedule
6) deems notice of a decision to have been given, a person making an
application for Information Commissioner review may do so without including
a copy of the decision.  Under proposed subsection 54N(2), an applicant may
also add particulars of the basis on which the applicant disputes the
decision.

The purpose of subsection 54N(3) is to require the Office of the
Information Commissioner to provide assistance to an applicant to prepare a
valid application.

Proposed section 54P (which requires an agency or Minister to notify
affected third parties if an FOI applicant seeks review of a decision to
refuse access to the third party information) preserves a notice
requirement under existing subsections 58F(3) (State documents), 59(3)
(business affairs documents) and 59A(3) (personal information documents).
The notice is important because the third party may not have been aware of
the request for access, particularly if the agency or Minister did not
contemplate disclosing the document.  (The requirement for third party
consultation only arises if an agency or Minister is considering giving
access to a document containing information relevant to the third party.)

Under proposed subsection 54P(3), an agency or Minister is required to give
a copy of the notice given to the third party to the Information
Commissioner.  An affected third party becomes a party to the review
application under proposed section 55A.

Proposed section 54Q qualifies the obligation to give notice to an affected
third party under proposed section 54P (and replicates the same qualifying
effect under existing subsections 59(3), 59(4), 59A(3) and 59A(4) of the
FOI Act).  The Information Commissioner is given a discretionary power to
order that an agency or Minister does not need to give notice to an
affected third party of an Information Commissioner review application if
it would not be appropriate to do so in the circumstances.  An example of
when it may not be appropriate to give notice would be when a document
includes information about a person under criminal investigation.  An
agency or Minister will need to apply to the Information Commissioner for
an order to be excused from the requirement to give notice under proposed
subsection 54Q(2).  Proposed subsection 54Q(3) sets out the matters that
the Information Commissioner must have regard to for the purposes of
determining whether to make an order to excuse the requirement to give
notice.

Proposed section 54R permits an applicant to withdraw an application for
review at any time before the Information Commissioner makes a decision.  A
withdrawn application is taken never to have been made.

Proposed section 54S deals with the time periods within which an
application must be made for Information Commissioner review.  Under
subsection 54S(1), an applicant who is seeking review of a decision to
refuse access to a document must make the application within 60 days of
receiving notice of a decision of the kind listed in subsection 54L(2).
(An 'access refusal decision' applies to the decisions listed in proposed
section 53A.)  This time period is the same period that an FOI applicant
has to make an application for AAT review under existing subsection 55(4)
of the FOI Act.

Under proposed subsection 54S(2), an applicant who is an affected third
party must make an application for Information Commissioner review within
30 days of receiving notice of a decision on an internal review
application, or if the applicant has not applied for internal review,
within 30 days of receiving notice (that an agency or Minister proposes to
give access to a document containing information related to the third
party) under sections 26A, 27 or 27A.  This time period is the same period
that an affected third party has to make an application for AAT review
under existing subsections 58F(2A) (State documents), 59(2A) (business
affairs documents) and 59A(2A) (personal information documents).

Proposed section 54T gives the Information Commissioner discretionary power
to extend the time for making an application for Information Commissioner
review if the Commissioner is satisfied that it is reasonable in all the
circumstances to do so.  This provision is similar to the provisions made
in subsections 29(7) to 29(10) of the AAT Act.

Proposed section 54U clarifies that the provisions in Division 5 have
application to part of an Information Commissioner review application (as
well as a whole application).

Proposed section 54V gives the Information Commissioner discretionary power
to make preliminary inquiries for the purpose of determining whether or not
to undertake a review.  This power could be used, for example, to clarify
that the decision in question is a decision which the Information
Commissioner has power to review.

Proposed section 54W gives the Information Commissioner discretion not to
undertake a review, or not to continue a review, in certain limited
circumstances.  The matters listed in paragraphs 54W(a) and 54W(c) are
concerned with circumstances where the review applicant is uncooperative or
cannot be contacted or the application is misconceived or vexatious.  Under
proposed paragraph 54W(b), the Information Commissioner may decide not to
undertake a review if satisfied that the interests of the administration of
the FOI Act make it desirable that the decision be reviewed by the AAT.
One of the reasons for retaining a right of review to the AAT is that, as
an experienced review body, the AAT can properly deal with highly contested
applications.  This provision enables the Information Commissioner to
decline to undertake a review if satisfied it would be more appropriate and
efficient for the application to be made directly to the AAT.  It is
intended that the Information Commissioner would undertake most review
applications.

If the Information Commissioner determines not to undertake a review under
section 54W, the applicant cannot make an application to the AAT for review
of the decision not to undertake, or not to continue, the review.
(Proposed section 57A sets out those decisions which are reviewable by the
AAT.)

Under proposed 54X, if the Information Commissioner decides not to
undertake a review, the Commissioner must give the review parties written
notice of the decision.  In the case of a decision under paragraph 54W(b)
that it would be desirable for the AAT to undertake the review, the notice
must state that the applicant may make an application to the AAT for
review.

When an agency or Minister does not make a decision in the required time,
the effect of the deeming provisions under proposed sections 15AC and 51DA
(deemed refusal for initial requests) and proposed section 54D (deemed
affirmation of original decision for purposes of an internal review) is
that an application may be made for Information Commissioner review.  The
effect of proposed section 54Y is that the Information Commissioner is
required to review an actual decision made by an agency or Minister which
has been made after an application has been lodged for Information
Commissioner review.

The notice requirement in proposed section 54Z ensures that the agency or
Minister who made the decision is given notice that an application has been
made for review by the Information Commissioner.  In a case where a third
party is seeking review of a decision to grant access to a document
containing information concerning them, this notice requirement ensures
that the FOI applicant (the person seeking access) is notified of the
review application.

Proposed section 55 establishes the general procedural provisions that will
apply in an Information Commissioner review.  It is intended that
Information Commissioner review will provide a simple, expedient and cost
efficient system for external merits review.  To achieve this, the
Information Commissioner is authorised to conduct a review in whatever way
considered appropriate (proposed subsection 55(2)) and to use as little
formality and technicality as possible (subsection 55(4)).

It is intended that most applications will be determined on the papers
(without a hearing), which is effected through proposed subsection 55(1).

To enhance the Information Commissioner's ability to quickly resolve
applications, under proposed paragraph 55(2)(b), the Information
Commissioner will be able to use any technique that is appropriate to
facilitate resolution, including techniques used in alternative dispute
resolution processes.  The ability to make preliminary inquiries,
particularly to agencies concerning a decision made by the agency, may
enhance the prospect of resolution through agreement without the need for
formal decision by the Information Commissioner.

Proposed paragraph 55(2)(c) allows a person to participate in a review by
any means of communication.  This is consistent with the intention that
Information Commissioner review be conducted with as little formality as
possible.  If a hearing is held, it will allow a person to participate by
telephone, thereby assisting accessibility.

Proposed paragraph 55(2)(d) allows the Information Commissioner to obtain
any information from any person, and to make any inquiries, that he or she
considers appropriate.  This is also consistent with the intention that
Information Commissioner review be conducted with as little formality as
possible.  For example, it would allow the Information Commissioner to make
early inquiries to an agency and to request information about the agency's
decision.  Such inquiries may facilitate the Information Commissioner
forming a preliminary view about the merit of a decision.  The Information
Commissioner also has compulsory information gathering powers under
proposed section 55R.

Proposed paragraph 55(2)(e) allows the Information Commissioner to give
written directions (like orders) relating to the conduct of review
proceedings both in relation to reviews generally and particular reviews.
For example, in the context of a particular review, a direction could be
made to prohibit or restrict the publication of certain evidence if the
Information Commissioner is satisfied that the evidence should be kept
confidential.  In the context of reviews generally, the Information
Commissioner could require a decision maker to lodge certain information
for the purpose of the review proceedings.

Proposed subsection 55(3) clarifies that a direction given under paragraph
55(2)(e) is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.  The provision is merely declaratory of
the law (to assist readers) and is not an exemption from the Legislative
Instruments Act 2003.

The effect of subsection 55(5) is that hearings, if held, must be conducted
in public unless the Information Commissioner is satisfied reasons exist to
hold the hearing, or part of a hearing, in private.  A similar rule applies
in AAT proceedings under section 35 of the AAT Act (hearings to be in
public except in special circumstances).

Proposed section 55A defines the review parties for the purposes of an
Information Commissioner review.  In general, for a decision that is a
decision to refuse access to a document the review parties will be the FOI
applicant (an 'IC review applicant' under paragraph (a)) and the principal
officer of the agency or the Minister who makes the decision.  If the
documents in contention contain information relating to an affected third
party, that third party will also be a party to the review application.

For a decision that is a decision to grant access to a document, the review
parties will be the affected third party who is opposing disclosure of the
document (an 'IC review applicant' under paragraph (a)) and the principal
officer of the agency or the Minister to whom the request was made.

The effect of proposed paragraph 55A(1)(d) and subsections 55A(2) and
55A(3) is that the Information Commissioner has a discretionary power to
join a person whose interests are affected as a party to a review
application, upon that person's application to the Commissioner.  An
example would be the FOI applicant who is seeking to be a party to an
application made by a third party who is contesting an access grant
decision.  Another example would be a person who is not given notice of a
review application because of the operation of proposed section 54Q (with
the consequence that the person is not made a party under paragraph
55A(1)(c)) and, upon inquiring into the application, the Information
Commissioner is subsequently not satisfied that the information concerning
that person is exempt.

Proposed section 55B enables a party to apply to the Information
Commissioner at any time (before a decision is made under proposed section
55K) for a hearing.  The Information Commissioner has discretion to allow
the application.  The intention is that hearings would not be commonplace
as they can increase contestability and prolong resolution.

Proposed section 55C clarifies that a party may be represented by another
person at a hearing.  This would include a legal representative.

Proposed section 55D reproduces the effect of existing section 61 of the
FOI Act.

Proposed section 55E empowers the Information Commissioner to request
reasons for a decision from an agency or Minister who made a decision if
the Commissioner believes the reasons given are inadequate or if no reasons
have been provided (contrary to the requirement under existing section 26).


The effect of proposed section 55F is that the Information Commissioner has
discretion to make a decision to resolve an application, in whole or in
part, by giving effect to terms reached in agreement between the parties.
Before making the decision, the Information Commissioner needs to be
satisfied that the terms of the agreement would be within the powers of the
Information Commissioner and that all parties have agreed to the terms.

The effect of proposed section 55G is that the Information Commissioner
must deal with a decision that has been varied by an agency or Minister
after an application has been made for Information Commissioner review as
though it is the decision for review.  The provision only applies to
decisions that essentially benefit the applicant.  Because of the
intervention of the Information Commissioner, upon a review application
being made, an agency or Minister may decide to vary their decision in a
manner that favours the applicant.  This decision may not necessarily be
with the agreement of the applicant for the purposes of proposed section
55F, and may arise because of the intervention of the Information
Commissioner.

Under proposed section 55H the Information Commissioner may refer a
question of law at any time during a review to the Federal Court for
determination.  The effect of proposed subsection 55H(5) is that the
Information Commissioner is bound to act consistently with the Federal
Court's decision on the referred question.  The power is intended to ensure
that the Information Commissioner makes decisions which are correct in law
and can make a decision to finally resolve a matter.  The AAT has a similar
power under section 45 of the AAT Act.

Proposed section 55J is a complementary provision for the purposes of
proposed section 55H.

Proposed section 55K establishes the power for the Information Commissioner
to determine review applications.  This power would be exercised in a case
where there has been no consensual agreement under proposed section 55F.
The effect of proposed subsections 55K(1) to 55K(3) is that the Information
Commissioner can make a fresh decision which replaces the decision of the
agency or Minister, affirms the decision of the agency or Minister, or
varies the decision of the agency or Minister.  These are full merits
review powers and are similar to the powers of the AAT under subsection
43(1) of the AAT Act.  The Information Commissioner must give written
reasons of the decision to all the parties to the review and must publish
the decision in a manner that makes it publicly available.  Proposed
subsection 55K(5) ensures that the decision does not include any matter
that has been found to be exempt.

The effect of proposed subsection 55L is that, upon finding a document to
be exempt, the Information Commissioner has no power to order that access
be given to the exempt material.  This includes a document which has been
found to be exempt because an exemption under proposed Division 2 of Part
IV applies, or it is conditionally exempt under a provision in proposed
Division 3 of Part IV and access to the document is contrary to the public
interest, or it is a document to which existing section 7 applies.  The
underlying premise for this provision is that it would defeat the purpose
of the exemption rules if the Information Commissioner could order that
access be given notwithstanding that a document is found to be exempt.  A
similar restriction is placed on the AAT under existing subsection 58(2) of
the FOI Act.

Proposed section 55M imposes a limitation on the power of the Information
Commissioner to require amendment to be made to certain records.  The
provision is related to the right established in Part V of the FOI Act for
a person to apply for amendment or annotation of a record of personal
information that is incorrect and that is used by an agency for
administrative purposes.  This provision is intended to replicate the
effect of existing subsection 55(6) of the FOI Act which imposes a similar
limitation on the AAT (which is being replaced by proposed section 58AA at
item 36).

Proposed sections 55N and 55P provide for the enforcement of a decision by
the Information Commissioner.  Section 55N requires an agency or Minister
to comply with a decision made under proposed section 55K.  If an agency or
Minister fails to comply with a decision, under proposed section 55P, the
Information Commissioner or review applicant may make an application to the
Federal Court for an order directing the principal officer of the agency or
the Minster to comply.  Such an application can only be made after the time
for making a review application to the AAT (which may be made by an agency
or Minister) has expired.  (The time for making an application for AAT
review is 28 days under subsection 29(2) of the AAT Act.)  A similar
enforcement regime is made to enforce determinations of the Privacy
Commissioner under section 58 and section 62 of the Privacy Act.

Proposed section 55Q gives the Information Commissioner a discretionary
power to correct obvious errors in a decision at the Commissioner's own
initiative or upon application by a review party.

Proposed section 55R gives the Information Commissioner the power to
compulsorily require production of information and documents.  It is an
offence to fail to comply with a production notice issued by the
Information Commissioner.  The power is necessary to ensure that the
Information Commissioner can obtain the material necessary for resolving a
review application.  It is similarly an offence to fail to comply with a
summons to produce issued by the AAT (see sections 40 and 61 of the AAT
Act).

Proposed section 55S is a complementary provision to the power given under
proposed section 55R.

Proposed section 55T gives the Information Commissioner a discretionary
power to require the principal officer of an agency or a Minister to
produce a document claimed to be exempt.  That power does not apply to
documents subject to a national security or Cabinet exemption claim which
are covered by proposed section 55U.  As the Information Commissioner is to
have full merits review powers, it is necessary for the Commissioner to
examine the documents to determine whether the correct decision has been
made.   Upon being satisfied that the document is exempt, the Information
Commissioner must return the documents to the agency or Minister.  The
effect of proposed subsection 55T(5) is that no person other than the
Information Commissioner or a member of the staff of the Office of the
Information Commissioner may have access to a document that is exempt.
(Under proposed section 89P the Information Commissioner must take all
reasonable steps to ensure members of staff are given appropriate security
clearances.)  A similar production power applies to AAT proceedings under
existing section 64 of the AAT Act.

Proposed section 55U gives the Information Commissioner a discretionary
power to require the principal officer of an agency or a Minister to
produce a document claimed to be exempt under the national security
exemption (existing section 33) or Cabinet section (section 34), but only
if the Commissioner is first not satisfied on affidavit or other evidence
that the document is exempt.  This provision replicates the effect of
section 58E of the FOI Act which applies to AAT review proceedings.  The
measure is intended to protect against the unnecessary disclosure of
sensitive information.

The power given to the Information Commissioner under proposed section 55V
to order an agency or Minister to undertake further searches of documents,
replicates the effect of the powers given to the AAT under existing
subsections 55(5) and 55(5A) of the FOI Act (to become section 58A at item
36 of this Schedule).

Proposed section 55W gives the Information Commissioner the power to
compulsorily require a person to attend to answer questions for the
purposes of a review.  It is an offence to fail to comply with a notice
issued by the Information Commissioner for this purpose.  The power is
necessary to ensure that the Information Commissioner can obtain the
information necessary for resolving a review application.  It is similarly
an offence to fail to comply with a summons to appear to give evidence in
AAT proceedings (see sections 40 and 61 of the AAT Act).

Proposed section 55X empowers the Information Commissioner to require a
person who appears before the Commissioner, pursuant to a notice under
section 55W, to take an oath or affirmation that the answer the person will
give will be true.  It is intended that the offence would apply if the
person refuses to take the oath or affirmation or if the person knowingly
gives false answers.

Proposed section 55Y preserves a claim for legal professional privilege in
respect of information or a document produced to the Information
Commissioner in connection with a review by the Information Commissioner.

Proposed section 55Z provides immunity to a person from civil proceedings
and criminal or civil penalty if the person gives information, produces a
document or answers a question in good faith for the purposes of an
Information Commissioner review.  The immunity applies even if the person
has not provided the material pursuant to a compulsory process.  The
Information Commissioner may obtain information under proposed paragraph
55(2)(d) which would depend on a person agreeing to give the information
without a compulsory notice.

Proposed sections 55ZA to 55ZD replicate the effect of section 60A of the
FOI Act which applies to AAT review proceedings.  The purpose of this
proposed amendment is to assist the Information Commissioner through the
provision of expert advice from the Inspector-General of Intelligence and
Security (which would be independent to agency evidence) to determine the
damage that could result from disclosure of a document which is claimed to
be exempt under the national security exemption (existing section 33).

Proposed section 56 gives a review party a right to appeal to the Federal
Court on a question of law from a decision of the Information Commissioner.
 A similar right is given to a party to an AAT proceeding under section 44
of the AAT Act.  A party may make an application to the Federal Court
instead of making an application to the AAT (which involves a full
reconsideration of the decision by the Information Commissioner in a merits
review) because, for example, the party believes the Information
Commissioner interpreted and applied the provisions of the FOI Act
incorrectly.  If the Federal Court remits a decision to the Information
Commissioner for reconsideration, it would be open to a party to apply to
the AAT for review of the decision made by the Information Commissioner (on
consideration of the remitted matter).

Proposed section 56A is a complementary provision to proposed section 56.
Similar provision is made in respect of Federal Court proceedings arising
from an appeal from an AAT decision under section 44 of the AAT Act.

Proposed section 57 is a guide to review by the AAT and is intended to
assist readability.

Proposed section 57A establishes a right of review to the AAT from an
Information Commissioner decision made under proposed section 55K or as a
result of a decision made by the Information Commissioner under proposed
paragraph 54W(b) not to undertake a review on the basis that it is
desirable that the AAT undertakes the review.  The effect of this provision
is that the AAT may review any decision that is amenable to review by the
Information Commissioner.  Under subsection 29(2) of the AAT Act, an
application to the AAT must be made within 28 days of the Information
Commissioner making the decision.

Item 35 - subsection 58(7)
Item 35 repeals subsection 58(7).  The effect of that provision is not
repeated in the Bill as its operation is spent.  This item is consequential
to the amendment proposed at item 22 of this Schedule.

Item 36 - after section 58
Proposed section 58A replicates the effect of existing subsections 55(5)
and 55(5A) of the FOI Act.  (Section 55 is repealed by item 34 of this
Schedule.)

Proposed section 58AA replicates the effect of existing subsection 55(6) of
the FOI Act.  (Section 55 is repealed by item 34 of this Schedule.)  The
provision is related to the right established in Part V of the FOI Act for
a person to apply for amendment or annotation of a record of personal
information that is incorrect and has been or is being used by an agency
for administrative purposes.  Provision for similar IC powers are at item
34, proposed new section 55M.

Item 37 - before section 58B
Item 37 inserts a title and is an aid to readability.

Item 38 - subsection 58B(1)
This item amends subsection 58B(1) of the FOI Act.  It is a minor drafting
change.

Item 39 -section 58D
Item 39 is concerned with the special constitution requirements for the
purposes of subsection 58B(1) of the FOI Act.  The special constitution
requirement applies when an exemption is claimed under existing section 33
(national security related documents) or (new) section 34 (Cabinet
documents).  The item addresses an existing gap in the different types of
membership that may arise in a three presidential member panel.

Item 40 - sections 58F, 59 and 59A
These provisions are repealed but the effect of these provisions is
preserved by proposed section 54M which provides a right of review for an
affected third party to the Information Commissioner on an 'access grant
decision' (item 34 of this Schedule).

Item 41 - section 60
An application to the AAT is an application for review of the decision made
by the Information Commissioner (unless the Information Commissioner
decides under proposed paragraph 54W(b) not to undertake a review on the
basis that it is desirable for the AAT to undertake external merits review
at first instance).  The applicant has the onus of establishing that the
Information Commissioner did not make the correct decision.  The
Information Commissioner will not defend his or her decision and is not a
party to the proceedings in the AAT.   The parties to an AAT review
application are:
    . proposed paragraph 60(3)(a) - the person who applies to the AAT from
      an Information Commissioner decision made under proposed section 55K
      because they were a party to that review application (or as a
      consequence of a decision by the Information Commissioner not to
      undertake a review under proposed paragraph 54W(b));
    . proposed paragraph 60(3)(b) - the person who made the request under
      section 15 (for access to documents) or section 48 (for amendment or
      annotation of a personal record).  If the agency or the Minister is
      the applicant for review under paragraph (a), this provision ensures
      the original FOI applicant is a party to the AAT proceedings;
    . proposed paragraph 60(3)(c) - the principal officer of the agency or
      the Minister to whom the request was made.  If the original FOI
      applicant is the applicant for review under paragraph (a), this
      provision ensures the agency or Minister is a party to the AAT
      proceedings;
    . proposed paragraph 60(3)(d) - any other person who is made a party to
      the proceeding by the AAT under subsection 30(1A) of the AAT Act.
      Under that provision the AAT has a discretionary power to join a
      person whose interests are affected by the decision.

Proposed section 60AA requires an agency or Minister to notify affected
third parties if an FOI applicant seeks AAT review of a decision to refuse
access to the third party information.  This replicates the notice
requirement under proposed section 54P (which applies if an application is
made for Information Commissioner review).  The provision preserves the
notice requirement under existing subsections 58F(3) (State documents),
59(3) (business affairs documents) and 59A(3) (personal information
documents).  An affected third party may apply to become a party to the AAT
review application under proposed paragraph 60(3)(d).

Proposed section 60AB preserves the effect of subsections 59(3), 59(4),
59A(3) and 59A(4).  The effect of proposed section 60AB is that the AAT has
discretion to order that an agency or Minister does not need to give notice
to an affected third party of an AAT review application if it would not be
appropriate to do so in the circumstances.  An example of when it may not
be appropriate to give notice would be when a document includes information
about a person under criminal investigation.  An agency or Minister will
need to apply to the AAT for an order to be excused from the requirement to
give notice under proposed subsection 60AB(2).  Proposed subsection 60AB(3)
sets out the matters that the AAT must have regard to for the purposes of
determining whether to make an order to excuse the requirement to give
notice.

Item 42 - section 61
Item 42 is an amendment arising from the proposal to interpose Information
Commissioner review before AAT review.  The effect of subsection 61(1) is
that the person who applies for review of an access refusal decision (from
a decision of the Information Commissioner) has the onus of establishing
that the Information Commissioner made the wrong decision.  The person who
applies for review may be an applicant or it may be the agency or the
Minister.

Proposed subsection 61(2) preserves the effect of existing subsection
61(2).

Proposed section 61A modifies various provisions in the AAT Act as a
consequence of the proposal to interpose Information Commissioner review
before AAT review.

Item 43 - before section 63
Item 43 inserts a title and is an aid to readability.

Item 44 - before section 66
Item 44 inserts a title and is an aid to readability.

Item 45 - paragraph 66(1)(a)
This item updates a reference and is consequential in nature.

Item 46 - subsections 66(1) and (3)
Existing section 66 of the FOI Act permits the AAT to make a recommendation
to the Attorney-General that the costs of an applicant be paid by the
Commonwealth.  To reflect changes that have occurred to the provision of
Commonwealth legal services, the effect of this proposed amendment is that
the AAT may make a recommendation to the Minister responsible for an agency
instead of to the Attorney-General.

Item 47 - before section 67
Item 47 inserts a title and is an aid to readability.

Item 48 - paragraph 67(1)(a)
Item 48 updates a reference and is consequential in nature.

Item 49
Item 49 inserts Part VIIB into the FOI Act which gives the Information
Commissioner a function of investigating actions by an agency relating to
the handling of FOI matters under the Act.

Proposed section 68 is a guide to the investigation function of the
Information Commissioner and is intended to assist with readability.

The effect of proposed sections 69 and 70 is to give the Information
Commissioner the function of investigating complaints about an action taken
by an agency in the performance of functions, or the exercise of powers,
under the FOI Act.  A complainant is required to make a complaint in
writing and to identify the agency against whom the complaint is made.  The
Information Commissioner is required to investigate a complaint that is
made, subject to other provisions in Division 2.  Proposed section 73 gives
the Information Commissioner a discretionary power not to investigate a
complaint in certain circumstances.  Proposed section 74 permits the
Information Commissioner to transfer a complaint to the Ombudsman in
certain circumstances.

Under proposed subsection 69(2), the Information Commissioner has
discretion to undertake an own motion investigation into action undertaken
by an agency in the performance of functions, or the exercise of powers,
under the FOI Act.

Like the investigation function of the Ombudsman, the Information
Commissioner is not authorised to investigate action taken by a Minister.

Proposed section 71 clarifies that the provisions in Subdivision C of
Division 2, Part VIIB have application to part of a complaint (as well as
the whole complaint).

Proposed section 72 gives the Information Commissioner discretionary power
to make preliminary inquiries for the purpose of determining whether or not
to investigate a complaint.  This power could be used, for example, to
determine if the complaint relates to an action under the FOI Act.

Proposed section 73 gives the Information Commissioner discretion not to
investigate, or not to continue to investigate, a complaint in certain
circumstances.  Proposed paragraph 73(b) recognises that the Information
Commissioner's function of undertaking a review offers a discrete remedy
for grievances relating to reviewable FOI decisions.  If the proper remedy
is for a person to seek review of the merits of an FOI decision, it is
intended that the Information Commissioner would not investigate the matter
under Part VIIB.  The investigation of actions under Part VIIB is intended
to deal with the manner in which FOI requests are handled and procedural
compliance matters.  Paragraph 73(c) applies a similar principle to
paragraph 73(b).  Similar to the Ombudsman, the Information Commissioner
may decide not to investigate a complaint until an agency has had the
opportunity to address a complaint or, if the Commissioner is satisfied
that the agency has adequately addressed the complaint (proposed paragraph
73(d)).  Other grounds listed in proposed section 73 are similar to the
discretionary grounds applicable to the Ombudsman (see section 6 of the
Ombudsman Act).  If the Information Commissioner decides not to investigate
a complaint, the Commissioner is required to give a written notice (with
reasons) to the applicant and agency (proposed section 75).

Proposed section 74 deals with the relationship between the Information
Commissioner's investigation function and the Ombudsman's investigation
function.  While the Ombudsman may still investigate complaints concerning
action under the FOI Act, it is intended that the Information Commissioner
will deal with most complaints of this kind.  The Ombudsman will have
capacity to investigate FOI complaints where the Ombudsman could more
effectively or appropriately deal with a complaint.  An example of where it
may be more effective for the Ombudsman to handle an FOI complaint is where
the complaint forms one aspect of a wider grievance concerning agency
action.  An example of where it may be more appropriate for the Ombudsman
to handle an FOI complaint is where the complaint relates to action by the
Information Commissioner in dealing with an FOI request.  Proposed
subsection 74(2) provides for the Information Commissioner to consult with
the Ombudsman to ensure no overlap arises.  Proposed subsection 74(3)
requires the Information Commissioner to transfer a complaint to the
Ombudsman upon deciding not to investigate a complaint following
consultation with the Ombudsman.  A complementary provision is made for the
purposes of the Ombudsman Act (item 60, proposed section 6C of the
Ombudsman Act).

Proposed subsection 75(1) is a procedural measure requiring the Information
Commissioner to notify the respondent agency where it proposes to
investigate a complaint.  Similarly, under proposed subsections 75(2) to
75(4), the Commissioner is required to give written notice (with reasons)
to the complainant or respondent agency if deciding not to investigate (or
continue to investigate) a complaint.

Proposed subsection 76(1) establishes a general rule applying to the
conduct of an investigation.  The requirement for an investigation to be
conducted in private (subject to other provisions in the Act) is consistent
with the manner in which the Ombudsman is required to undertake
investigations (see subsection 8(2) of the Ombudsman Act).

Proposed subsection 76(2) gives the Information Commissioner discretionary
power to obtain information from an agency officer, and make any inquiry,
relevant to an investigation.  This provision is supplemented by compulsory
powers under proposed sections 79 (production of information and documents)
and 82 (notice to appear to answer questions).

Proposed section 77 empowers persons authorised by the Information
Commissioner to enter premises occupied by an agency (or a contracted
service provider in certain circumstances) for the purposes of an
investigation.  In some cases it may be necessary for the Information
Commissioner to be satisfied that proper searches have been conducted for
the purposes of answering an access request, or it may simply be more
convenient for an inspection of documents to occur on agency premises.  The
power is conditional upon the principal officer of an agency consenting to
entry or, in the case of a contracted service provider, the person in
charge consenting.

For the purposes of proposed section 77, ministerial approval is required
before entering a place identified under proposed subsection 78(1).  That
requirement is consistent with a rule that applies for entry to premises by
the Ombudsman in connection with the Ombudsman's investigation function
(see subsection 14(2) of the Ombudsman Act).  Similarly, the power under
proposed subsections 78(3) and 78(4) for the Attorney-General to prohibit
entry to a place by declaration (if satisfied an investigation may
prejudice the security or defence of the Commonwealth) is consistent with a
provision that applies in connection with the Ombudsman's investigation
function (see subsection 14(3) of the Ombudsman Act).

Proposed section 79 gives the Information Commissioner the power to
compulsorily require production of information and documents in connection
with an investigation.  It is an offence to fail to comply with a
production notice issued by the Information Commissioner.  The power is
necessary to ensure that the Information Commissioner can obtain the
material relevant to an investigation.  It is similarly an offence to fail
to comply with a notice to produce issued by the Ombudsman (see section 36
of the Ombudsman Act).

Proposed section 80 is a complementary provision to the power given under
proposed section 79.

The effect of proposed section 81 is to give the Information Commissioner
the same power to require production of exempt documents as applies under
the Commissioner's review function.  The same limitations that apply in the
exercise of this power under the review function, including in relation to
national security and cabinet documents, will also apply to the
investigation function.  For example, returning exempt documents and
ensuring that they are not disclosed other than to staff of the Office of
the Information Commissioner in the course of performing their duties.

Proposed section 82 gives the Information Commissioner the power to
compulsorily require a person to attend to answer questions for the
purposes of an investigation.  It is an offence to fail to comply with a
notice issued by the Information Commissioner for this purpose.  The power
is necessary to ensure that the Information Commissioner can obtain the
information necessary to conduct an investigation.  It is similarly an
offence to fail to comply with a notice to appear issued by the Ombudsman
(see section 36 of the Ombudsman Act).

Proposed section 83 empowers the Information Commissioner to require a
person who appears before the Commissioner, pursuant to a notice under
section 82, to take an oath or affirmation that the answer the person will
give will be true.  It is an offence to fail to comply with this
requirement.  It is intended that the offence would apply if the person
refuses to take the oath or affirmation or if the person knowingly gives
false answers.

Proposed section 84 preserves a claim for legal professional privilege in
respect of information or a document produced to the Information
Commissioner in connection with an investigation by the Information
Commissioner.

Proposed section 85 provides immunity to a person from civil proceedings
and from criminal or civil penalty if the person gives information,
produces a document or answers a question in good faith for the purposes of
an investigation.  The protection applies even if the person has not
provided the material pursuant to a compulsory process.  The Information
Commissioner may obtain information under proposed subsection 76(2) which
would depend on a person agreeing to give the information without a
compulsory notice.

Upon completing an investigation, the Information Commissioner is required
by proposed section 86 to notify the agency of the outcome of the
investigation, and the complainant.  (There will be no complainant if the
Information Commissioner is undertaking an own motion investigation.)  The
agency is authorised to make any comments back to the Information
Commissioner about the notice.  However, under proposed section 89C, the
notice must not include exempt matter.  Similarly to the Ombudsman, the
Information Commissioner has recommendatory powers in respect of his or her
investigation function.  The investigation may not lead in all cases to the
Information Commissioner making formal recommendations.  In this case, the
notice would address the matters in proposed section 87 (the investigation
results).  In some cases, intervention by the Information Commissioner may
lead to action by the agency that satisfactorily removes the reason for the
complaint.  In other cases, a suggestion or opinion by the Information
Commissioner may be the appropriate outcome.

If the Information Commissioner makes an investigation recommendation
(within the meaning of proposed section 88), the Commissioner may
subsequently report to the Minister responsible for the agency, and to the
Minister responsible for the FOI Act, if the Commissioner is not satisfied
that the agency has taken action that is adequate and appropriate in the
circumstances to implement the recommendation (proposed section 89A).  The
Minister responsible for the FOI Act is required to table a report of this
kind before each House of the Parliament (under proposed subsection
89A(5)).

As a pre-condition to taking action to table a report for the purposes of
section 89A, under proposed section 89, the Information Commissioner is
required to issue a notice to the respondent agency requesting particulars
of any action proposed to address an investigation recommendation.  It is
intended that the Information Commissioner would only take action to report
to Ministers if the Commissioner considers the agency has not taken action
that is adequate and appropriate to implement a recommendation.

Proposed section 89B prescribes the matters that must be addressed in a
report to Ministers for the purposes of section 89A.  Under proposed
section 89C, a report must not include exempt matter.

Proposed section 89D imposes a limitation on the power of the Information
Commissioner to recommend that amendment be made to certain records.  The
provision is related to the right established in Part V of the FOI Act for
a person to apply for amendment or annotation of a record of personal
information that is incorrect and that is used by an agency for
administrative purposes.  This provision is intended to replicate an
existing limitation that applies to the Ombudsman in connection with an
investigation related to action under the FOI Act (see existing section
57(6) of the FOI Act which is to be replaced by proposed section 89J in
this item).

Proposed section 89E provides immunity to a complainant from civil
proceedings, provided that the person has made the complaint under proposed
section 70 in good faith.

The purpose of proposed section 89F is to preserve the jurisdiction of the
Ombudsman to undertake investigations related to the FOI Act.  It is
intended that most complaints about handling requests under the FOI Act
will be dealt with by the Information Commissioner (see proposed section 74
above).

Proposed section 89G introduces the same restriction to a report prepared
by the Ombudsman in connection with an investigation relating to action by
an agency under the FOI Act (that the report must not contain exempt
matter) as is proposed to apply to a report (and notice) prepared by the
Information Commissioner (see proposed section 89C).

Proposed section 89H preserves the effect of existing subsection 57(5) of
the FOI Act.

Proposed section 89J preserves the effect of existing subsection 57(6) of
the FOI Act.  (Existing section 57 is repealed by item 34 of this
Schedule.)  The provision is related to the right established in Part V of
the FOI Act for a person to apply for amendment or annotation of a record
of personal information that is incorrect and that is used by an agency for
administrative purposes.  The same limitation is proposed to apply to an
investigation by the Information Commissioner under proposed 89D in this
item.

Item 50 - before section 91
Proposed section 89K gives the Information Commissioner discretionary power
to declare a person to be a vexatious applicant, upon the Commissioner's
own motion or upon application by an agency or Minister.  One of the
reasons that the Open government report made no recommendation to amend the
FOI Act to include a power for a person to be declared a vexatious
applicant was a potential for agencies to invoke the power merely because
the person was perceived as a nuisance (at paragraph 7.18).  Under this
measure, the power is exercised by the Information Commissioner who is an
independent statutory office holder.  If an agency or Minister makes an
application to the Information Commissioner the effect of proposed
subsection 89K(3) is that the agency or Minister bears the onus of
establishing that the Commissioner should make the declaration.

Proposed section 89L establishes the grounds upon which the Information
Commissioner needs to be satisfied in order to declare a person to be a
vexatious applicant.  The power is exercisable in relation to an 'access
action' by the applicant. An access action relates to rights provided under
the Act to make a request or an application for review (other than an
application for review to the AAT).  Before making a declaration, the
Information Commissioner is required to give the person an opportunity to
make submissions.

Under proposed section 89M, the Information Commissioner may make a
declaration subject to terms and conditions.  Under proposed subsection
89M(2), a declaration may have the effect that an agency or Minister may
refuse to deal with an access request or an application from the person
declared vexatious unless the request or application is made with the
permission of the Information Commissioner.

Under proposed section 89N, a person who is declared vexatious may apply to
the AAT for review of that decision.  The Information Commissioner would be
the respondent party to the application.

Proposed section 89P requires the Information Commissioner to ensure that
staff of the Office hold appropriate security clearances (in accordance
with the Australian Government Protective Security Manual).  This measure
recognises that staff may handle classified material in the course of
performing duties under the FOI Act.

Proposed section 90 extends the immunity given to officers, Ministers,
agencies and the Commonwealth from certain civil actions in existing
section 91 of the FOI Act.  That provision provides protection where access
is 'required' to be given under the Act.  It does not cover discretionary
disclosure outside the FOI Act or disclosure of exempt documents.  Proposed
section 90 extends the scope of the immunity to disclosures of that kind
made in good faith (in addition to disclosures required to be made under
the Act).  The provision is also amended to cover the proposed publication
requirements under the Act (namely, the information publication scheme in
Part II and under proposed section 11C (Part III)), in addition to access
requests.  This proposal implements a recommendation of the Open government
report.

Item 51 - subsection 91(1)
This item is a consequential amendment to the proposal to insert section 90
in item 50.

Item 52 - subsection 91(1A)
This item is a consequential amendment to the proposal to insert section 90
in item 50.

Item 53 - paragraph 91(1C)(a)
This item is consequential to item 21 in Schedule 3 (section 26A has been
redrafted to improve readability).

Item 54 - paragraph 91(1C)(b)
This item is consequential to item 21 in Schedule 3 (and takes account of
the redrafting of section 27).

Item 55 - paragraph 91(1C)(c)
This item is consequential to item 21 in Schedule 3 (and takes account of
the redrafting of section 27A).

Item 56 - section 92
Item 56 repeals existing section 92 and substitutes a new provision that
extends the immunity given to officers and Ministers from criminal
offences.  Existing section 92 provides protection where access is
'required' to be given under the Act.  It does not cover discretionary
disclosure outside the FOI Act or disclosure of exempt documents.  Proposed
section 92 extends the scope of the immunity to disclosures of that kind
made in good faith (in addition to disclosures required to be made under
the Act).  The provision is also amended to cover the proposed publication
requirements under the Act (namely, the information publication scheme in
Part II and under proposed section 11C (Part III)), in addition to access
requests.

Item 57 - section 93
Existing section 93 of the Act is proposed for repeal because the
preparation of an annual report on the operation of the FOI Act is proposed
as a function of the Information Commissioner under clause 30 of the
Information Commissioner Bill.

Proposed section 93, which requires agencies and Ministers to furnish
information for the purposes of the annual report under clause 30 of the
Information Commissioner Bill, is intended to replicate the obligation
under existing subsection 93(2) of the FOI Act.  The information that must
be provided is set out in clause 31 of the Information Commissioner Bill.

Proposed section 93A gives the Information Commissioner a discretionary
power of issuing guidelines for the purposes of the FOI Act.  The reference
to guidelines addressing certain matters under proposed subsection 93A(2)
is not intended to limit the power of the Information Commissioner to issue
guidelines on other aspects of the operation or administration of the FOI
Act.  An agency or Minister must have regard to any guidelines issued by
the Information Commissioner (that is to consider the guidelines).  It is
not intended that the guidelines have binding effect.

Proposed subsection 93A(3) provides that guidelines are not legislative
instruments.  The provision is merely declaratory of the law (to assist
readers) and is not an exemption from the Legislative Instruments Act 2003.


Proposed section 93B requires the Minister responsible for the FOI Act to
cause a Government review to be undertaken of the operation of the Act two
years after the commencement of this provision.  The period of two years
should allow sufficient time for the effectiveness of the Act (as changed
by the reform bills) to be assessed.  The report must be completed within
six months and a copy of the report is to be tabled in the Parliament.
Provision is also made in the Information Commissioner Bill at clause 33
for review of that legislation when enacted.  It is the Government's
intention for both reviews to be undertaken at the same time.

Part 2 - Other amendments - Ombudsman Act 1976

Item 58 - subsection 3(1)
Item 58 inserts a definition and is related to the proposal at item 60.

Item 59 - subsections 6(4A) to (4C)
Item 59, which repeals subsections 6(4A) to 6(4C), is a consequential
amendment arising from the amendment at item 60.

Item 60 - after section 6B
The amendments to the Ombudsman Act relate to the proposal to give the
Information Commissioner a function of investigating action taken by
agencies under the FOI Act.  While the Ombudsman may still investigate
complaints concerning action under the FOI Act, it is intended that the
Information Commissioner will deal with most complaints of this kind.  The
Ombudsman will have capacity to investigate FOI complaints where the
Ombudsman could more effectively or appropriately deal with a complaint
(for example, where the FOI complaint forms one aspect of a wider grievance
concerning agency action or relates to action by the Information
Commissioner in dealing with an FOI request).  Proposed subsection 6C(2)
provides for the Ombudsman to consult with the Information Commissioner to
ensure no duplicity arises.  Proposed subsection 6C(3) requires the
Ombudsman to transfer a complaint to the Information Commissioner upon
deciding not to investigate a complaint following consultation with the
Information Commissioner.  Complementary provision is made in relation to
the Information Commissioner (item 49, proposed section 74 of the FOI Act).



Item 61 - subsection 19(4)
This item addresses a reference error in subsection 19(4) of the Ombudsman
Act.

Item 62 - subparagraph 19R(3)(b)(iii)
Item 62 is a consequential amendment arising from item 59.

Item 63 - subsection 19R(4) (table item 4, column 2)
Item 63 is a consequential amendment arising from item 59.

Item 64 - subsection 35(6A)
This item is a consequential amendment arising from item 59.

Part 3 - Application and transitional provisions

Item 65 - application Part 1
Subitem (1) of item 65 provides that the amendments made in Part 1 of
Schedule 4 apply in relation to requests for access made under section 15
of the FOI Act and applications made under section 48 of the FOI Act that
are received at or after the commencement of those items.

Subitem (2) of item 65 provides that the amendments proposed to section 66
of the FOI Act (power for the AAT to make a recommendation that costs be
paid) apply to applications to the AAT made at or after the commencement of
items 44 and 46.

Subitem (3) of item 65 relates to the proposed investigation function and
means that the Information Commissioner may investigate action taken by an
agency for the purposes of the FOI Act whether the action occurred before,
at or after the commencement of the amendments made by item 49.

The effect of subitem (4) is that the proposed amendments to extend the
immunity to officers and Ministers for certain civil proceedings and for
criminal liability apply to actions involving the publication of a
document, or giving access to a document, at or after the commencement of
those items.

Item 66 - application Part 2
The amendments to the Ombudsman Act made by Part 2 of Schedule 4 apply to a
complaint made to the Ombudsman (in relation to action by an agency for the
purposes of the FOI Act) at or after the commencement of those amendments.

Item 67 - savings - complaints on foot continue under old law
This item establishes that a complaint made to the Ombudsman before the
commencement of the amendments in Part 2 is to continue to be dealt with
under the Ombudsman Act if the Ombudsman had not informed the complainant
of the result of the investigation under section 12 of the Ombudsman Act.


Schedule 5 - Amendments consequential on the establishment of the Office of
the Information Commissioner

Most of the items in this Schedule are amendments consequential on the
establishment of the Office of the Information Commissioner and, in
particular, the proposal to bring the Privacy Commissioner and the Office
of the Privacy Commissioner into the Office of the Information
Commissioner.  The Information Commissioner, as head of the Office, is to
be principally vested with all the functions of the Office including the
privacy functions (within the meaning of the Information Commissioner
Bill).  For that reason, references to the Privacy Commissioner in all
legislation are to be substituted with references to the Information
Commissioner.  This affects items 3, 4, 5, 6, 7, 8, 9, 17, 18, 20, 21, 22,
23, 24, 25, 26, 30, 34, 39, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 55, 57,
58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 71, 73, 74, 75.

The Information Commissioner will have the privacy functions, the FOI
functions and the information commissioner functions (within the meaning of
the Information Commissioner Bill).  A number of amendments proposed to
legislation addressed in this Schedule make specific reference to the
Information Commissioner's privacy functions or to the Privacy Act in order
to clarify, where needed, that the relevant function is related to the
Information Commissioner's responsibilities for privacy (and not the FOI or
information commissioner functions).  This affects items 1, 11, 15, 16, 19,
27, 29, 32, 35, 37, 41, 66, 70, 76, 77.

Some of the amendments proposed to legislation addressed in this Schedule
amend secrecy provisions and have the effect of making a disclosure of
information to the Information Commissioner for the purposes of the
Commissioner's investigation functions a permitted disclosure.  These
amendments will apply to the Information Commissioner's investigation
functions under the Privacy Act and under proposed Part VIIB of the FOI
Act.  This affects items 2, 12, 13, 14, 33, 36, 38, 78.

Item 10
This item proposes repeal of that part of subsection 4(4) of the Aviation
Legislation Amendment (2008 Measures No.2) Act 2009 that authorises the
Privacy Commissioner to delegate his or her powers to a member of staff for
the purposes of preparing the report under section 4.  The Information
Commissioner will similarly have the power to make a delegation for that
purpose under the Information Commissioner Bill (proposed clauses 9 and
25).  The amendment is consequential to the repeal of the Privacy
Commissioner's delegation power effected by item 56 of this Schedule.

Items 28 and 31
These items repeal provisions in the Data-matching Program (Assistance and
Tax) Act 1990 ('DP(AT) Act') which are now spent in operation.  Under
section 12 of the DP(AT) Act, the Privacy Commissioner has the function of
issuing guidelines.  The DP(AT) Act incorporates interim guidelines in a
schedule which were to have effect up until the Privacy Commissioner issued
guidelines relating to the matching of data.  The Privacy Commissioner
issued guidelines before 30 September 1991 as required under the Act.  As
the effect of the interim guidelines provision is now spent, that provision
(and related provisions about the interim guidelines) are proposed for
repeal.  Subsection 12(2A) of the DP(AT) Act, which required certain
reports to be tabled in the Parliament within certain periods, is also
proposed for repeal as its operation is spent.

Items 40, 43 and 45
These items make minor amendments to the National Health Act 1953 to update
provisions that are inconsistent with concepts in the Legislative
Instruments Act 2003.

Item 54
This item repeals Division 1 of Part IV of the Privacy Act, which
establishes the Office of the Privacy Commissioner.  This Division will
become redundant in light of the proposal to bring the Office of the
Privacy Commissioner into the Office of the Information Commissioner and to
appoint the Privacy Commissioner under the Information Commissioner Bill.

Item 56
This item repeals sections from the Privacy Act dealing with the non-
disclosure of private information, preparation of an annual report and a
delegation power.  These sections are related to the operation of the
Office of the Privacy Commissioner.  They will become redundant in light of
the proposal to bring the Office of the Privacy Commissioner into the
Office of the Information Commissioner and to appoint the Privacy
Commissioner under the Information Commissioner Bill.

Item 72
Item 72 repeals subsection 309(5) of the Telecommunications Act 1997, which
is consequential to the proposal to repeal section 99 of the Privacy Act in
item 56 of this Schedule.

Schedule 6 - Other amendments

Part 1 - amendments to the FOI Act

Item 1 - subsection 4(1) (definition of agency)
The term 'eligible case manager' no longer has relevance for the purposes
of the FOI Act and this item removes a reference to this term.

Item 2 - subsection 4(1)
This item inserts a definition for 'Commonwealth contract' and is related
to item 19.  A Commonwealth contract for the purposes of this definition is
intended to cover contracts for the delivery of services to the community
by another party for or on behalf of an agency.  It is not intended to
cover contracts for the procurement of services for use by the
Commonwealth.

Item 3 - subsection 4(1)
This item inserts a definition for 'contracted service provider' and is
related to item 19.

Item 4 - subsection 4(1)
This item is related to the amendment proposed at item 21 (new subsections
7(2C) and 7(2D)).

Item 5 - subsection 4(1) (definition of Department)
This item omits words from the definition of 'Department' which were
transitional in nature and are now redundant.

Item 6 - subsection 4(1) (paragraph (d) of the definition of document)
The existing definition of 'document' is defined not to mean library
material maintained for reference purposes.  Agencies no longer maintain
'libraries' in the traditional sense and this item proposes to update the
definition of document to exclude material that is maintained for reference
purposes and is otherwise publicly available.

Item 7 - subsection 4(1) (definition of document of an agency)
This item repeals an existing definition and replaces it with a new
definition that takes into account the amendment proposed in item 19
(proposed section 6C).

Item 8 - subsection 4(1)
This item is related to the amendment proposed in items 24 and 25.  It
facilitates the making of applications and giving of notices for purposes
under the Act by electronic communication.  Applications may still be
submitted in person or by post.

Item 9 - subsection 4(1) (definition of eligible case manager)
The term 'eligible case manager' no longer has relevance for the purposes
of the FOI Act and this item removes the definition for this term.

Item 10 - subsection 4(1)
This item is related to the amendment proposed in items 20 and 21 (proposed
subsection 7(2B)).

Item 11 - subsection 4(1)
This item is related to the amendment proposed at item 32 (proposed section
24AA).

Item 12 - subsection 4(1) (paragraphs (b) and (c) of the definition of
principal officer)
The concept of 'principal officer' is used in connection with several
aspects of the FOI Act.  This item would replace existing paragraph (b) of
the definition of 'principal officer' to reduce the need for the Freedom of
Information (Miscellaneous Provisions) Regulations to prescribe principal
offices in respect of authorities, as authorities can frequently change
names or merge.  The intention is that proposed subparagraphs (ii) - (v)
would apply to most authorities subject to the FOI Act, but if this was not
the case (or to avoid ambiguity in some instances) proposed subparagraph
(i) allows for the Regulations to declare an office to be the principal
office of the authority.  In the case of subparagraph (iii), the 'person
responsible for the day-to-day management of the authority' would in many
cases be the Chief Executive Officer or equivalent position which manages
the authority on a day-to-day basis.  It is anticipated that the
Regulations will be reviewed in conjunction with this amendment.

This item also removes that part of the definition that relates to an
'eligible case manager' (existing paragraph (c)) as this term no longer has
relevance for the purposes of the FOI Act.

Item 13 - subsection 4(1)
This item is related to the amendment proposed at item 32 (proposed section
24AB).

Item 14 - subsection 4(1) (paragraph (d) of the definition of responsible
Minister)
This item is a minor editorial change that arises as a consequence of item
15.

Item 15 - subsection 4(1) (paragraph (e) of the definition of responsible
Minister)
The item is related to the removal of the term 'eligible case manager' from
the FOI Act, which no longer has relevance for the purposes of the FOI Act.

Item 16 - subsection 4(1)
This item inserts a definition of 'subcontractor' in respect of a
Commonwealth contract (see item 2), which is related to the amendment
proposed at item 19 (proposed section 6C - requirement for Commonwealth
contracts).

Item 17 - subsection 4(8)
This item repeals a provision dealing with application fees.  It is part of
these reforms that no application fee will apply in relation to access
requests made under Part III of the Act (other than an application fee to
the AAT).

Item 18 - section 6B
The item repeals a provision related to an 'eligible case manager', which
no longer has relevance for the purposes of the FOI Act.

Item 19 - before section 7
Item 19 inserts proposed section 6C.  The measure is intended to extend the
scope of the FOI Act so that requests for access may be made for documents
held by contracted service providers (and subcontractors) delivering
services for or on behalf of an agency to persons in the community.  The
proposal is tied to recommendation 99 of the Open government report which
was concerned with 'the trend towards government contracting with private
sector bodies to provide services to the community' on the basis that it
'poses a potential threat to the government accountability and openness'.
Under this measure, an agency is required to take contractual measures so
that it receives a document held by a contracted services provider (or
subcontractor) relating to the performance of the contract when the agency
receives an FOI request.  The contractual term will be a requirement that
the contracted services provider must give a copy of a relevant document to
the agency upon request by the agency.  A document that is provided under
this measure may still be exempt from access if an exemption properly
applies.

A related amendment proposal is made at item 33 (new section 24A) to enable
an agency or Minister to refuse a request if all reasonable steps have been
taken to obtain a relevant document in exercise of the contractual right
and the document has not been provided by the contracted services provider
(or subcontractor).

Item 20 - subsection 7(2A)
This item repeals existing subsection 7(2A) in the FOI Act and substitutes
proposed subsection 7(2A).  The proposed subsection replicates existing
subsection 7(2A) of the FOI Act (which is redrafted to improve clarity) but
extends the operation of the exclusion to a document that contains a
summary of, or an extract or information from, an intelligence agency
document.  For example, a briefing prepared by an agency to a Minister that
extracted information from an intelligence agency document would be
excluded by this amendment, but only to the extent of that information.
Intelligence agencies are wholly excluded from the operation of the FOI Act
(under existing subsections 7(1) and (1A)).  The proposed exclusion of
summaries and extracts of intelligence agency documents held by agencies
and ministers ensures an even approach to documents derived from
intelligence agencies which are agencies now excluded from the operation of
the FOI Act.

This new provision would apply to any document whether or not created
before or after commencement of the provision.

Item 21 - subsection 7(2B)
This item repeals existing subsection 7(2B) and substitutes proposed
subsection 7(2B).  Similar to item 20, under this measure a document that
contains a summary of, or extract or information from, an intelligence
agency document will be excluded in the hands of a Minister.  It is
anomalous to treat intelligence agency documents differently when they are
held by a Minister rather than an agency.

This new provision would apply to any document whether or not created
before or after commencement of the provision.

Proposed subsections 7(2C) and 7(2D) are related to item 38 of this
schedule (proposed exclusion for the Department of Defence in respect of
particular documents).  Proposed subsection 7(2C) is intended to exclude an
agency from the operation of the FOI Act when it is holding a document that
has originated with, or been received from, the Department of Defence and
it is a document of the kind that Department of Defence is excluded under
the proposal at item 38 (called a 'defence intelligence document' in new
paragraph 7(2C)(a)).  Examples of these documents are given at item 38
below.  Proposed paragraph 7(2C)(b) excludes an agency in respect of a
document that contains a summary of, or extract or information from, a
defence intelligence document.  Under proposed subsection 7(2D), Ministers
would similarly be excluded in relation to a 'defence intelligence
document' held by them, or a summary of, or extract from, a defence
intelligence document.

Item 22 - after paragraph 13(1)(d)
Under existing subsection 13(1) of the FOI Act, a document is not subject
to the Act if a person (including a Minister or former Minister) other than
an agency placed it in the collection of the Australian War Memorial,
National Library of Australia, National Museum of Australia or the National
Archives of Australia.  It is a purpose of that provision that the FOI Act
does not inhibit voluntary deposits to these institutions.  The National
Film and Sound Archive receives material similar to that held by the other
collecting agencies listed in subsection 13(1) and will be added as an
institution for the purposes of subsection 13(1) under this item.

Item 23 - after paragraph 15(2)(a)
This item requires a person making an FOI request to state in their request
that it is an application for the purposes of the FOI Act (or similar
words).  This is necessary as a result of the proposed removal of the
requirement for applicants to pay an application fee.  As there is no
standard form for FOI requests, the payment of an application fee often
signifies that a person's request is a request under the FOI Act and not
merely an information-related inquiry.  This amendment is intended to
remove any possible ambiguity for an agency as to whether a request is made
under the FOI Act.

Item 24 - paragraphs 15(2)(c) to (e)
This item repeals some procedural requirements for making a request for
access to a document under the FOI Act and also substitutes a new
requirement for a request to give details of how notices may be sent to the
applicant.

Proposed paragraph 15(2)(c) allows notices to be sent by electronic
communication if the applicant nominates an electronic address to receive
notices under the Act, such as an email address or a fax number.  As a
result of this amendment, the existing requirement for an address 'in
Australia' cannot practicably be preserved.

The requirement for the request to be accompanied by an application fee in
existing paragraph 15(2)(e) is removed as a result of the proposed
abolition of application fees for FOI requests.

Item 25 - after subsection 15(2)
This item, which inserts proposed subsection 15(2A), establishes that a
request for access to a document may be sent by electronic communication,
for example by an email or fax number that has been specified by an agency
or Minister.  The new subsection also retains the existing rules that a
request may alternatively sent by delivery in person or by post to an
office of an agency or Minister.

Item 26 - at the end of subsection 15(3)
This item adds a note at the end of existing subsection 15(3) that is
related to the amendment proposed at item 32 (new section 24).

Item 27 - after subsection 15(5)
Under this proposed amendment, agencies and Ministers are required to take
into account any guidelines issued by the Information Commissioner for the
purposes of Part III of the FOI Act (access to documents).  Proposed
section 93A, which permits the Information Commissioner to issue guidelines
for the purposes of the FOI Act, is inserted by item 57 of Schedule 4.  It
is not intended that the guidelines have binding effect.  It is intended
that agencies and Ministers take any guidelines into account in making a
decision on a request.

Item 28 - paragraph 15(6)(a)
This item is a minor editorial amendment which removes unnecessary words
from the provision.  The item also inserts headings into the section to
assist with readability.

Item 29 - at the end of section 15
Item 29 inserts proposed subsections 15(7) and 15(8) to allow for an
extension of the processing period for an FOI request if consultation with
a foreign entity is required.  The FOI Act currently allows a time
extension to consult with a State, an individual or a business in respect
of information concerning them.  This new provision permits an agency or
Minister to extend the 30 day decision period on an initial application by
a further 30 days so that the agency or Minister can consult a foreign
government, an authority of a foreign government or an international
organisation in order to determine whether a document is exempt under
existing subparagraph 33(a)(iii) or paragraph 33(b) of the FOI Act.

Item 30 - after section 15
Item 30 inserts new provisions related to extensions of processing periods.

Proposed section 15AA permits an agency or Minister to extend the initial
time period for making a decision by 30 days if the written agreement of
the applicant is obtained.  The extension period must be no more than 30
days.  The agency or Minister must give notice of an extension of this kind
to the Information Commissioner.  For large or complex requests, an agency
may instead elect to seek an extension of time from the Information
Commissioner under proposed new section 15AB.  Under that provision, the
Information Commissioner may extend the decision making period beyond an
additional 30 days.  The policy approach is that for extensions beyond 30
days, these applications should be under the supervision of the Information
Commissioner.

For the purposes of proposed section 15AB, a complex request may include a
request that requires extensive consultation.  For requests that involve
extensive examination of documents with a substantial resource impact, an
agency or Minister may instead seek to consult with the applicant to narrow
the scope of a request under new section 24 (item 32 of this Schedule).

The effect of proposed section 15AC is that an agency or Minister is deemed
to have refused access to a document if the agency or Minister has not
given notice of a decision on a request for access (made under section 15)
within 30 days of receiving the request (or that period as extended,
otherwise than under section 15AC, for example under proposed section 15AA
(extension with agreement) or subsection 15(6) (extension upon third party
consultation)).

Under proposed subsection 15AC(3), the deemed refusal is taken to be a
decision made personally by the principal officer of the agency or the
Minister on the last day of the decision period and notice is taken to have
been given to the applicant on that same day.  A consequence of a deemed
refusal decision is that an applicant may directly make an application for
Information Commissioner review (as an access refusal decision under
proposed paragraph 54L(2)(a)).  This provision is similar to the effect of
existing subsection 56(1) of the FOI Act.

The effect of proposed subsections 15AC(4)-(6) is that the Information
Commissioner is given a discretionary power to extend the period for making
an initial decision on an access request, upon application from an agency
or Minister.  The rationale underlying this provision is that the extension
may avoid the need for an applicant to lodge an application for Information
Commissioner review.  The Information Commissioner may extend the period
for such period considered to be appropriate and may also impose
conditions.  A condition may be that the agency or Minister must give
notice of the extended time to the applicant.

If the Information Commissioner allows an extension, the effect of proposed
subsection 15AC(7) is that the application for access is not deemed to be
refused (providing the agency or Minister makes a decision within the
extended time period and complies with any condition).  However, if the
agency or Minister does not comply, then the effect of proposed subsection
15AC(8) is that a deemed refusal decision is taken to apply.  Additionally,
under proposed subsection 15AC(9), the Information Commissioner does not
have the power to allow a further extension of time to make an initial
decision.  In this case, it would be open to the applicant to make an
application for Information Commissioner review.

Item 31 - paragraph 17(1)(a)
Item 31 is a minor amendment that is consequential to the amendment
proposed at Item 32.

Item 32 - section 24
Existing section 24 of the FOI Act permits an access request to be refused
if the work involved in processing the request would substantially and
unreasonably divert the resources of an agency, or would substantially and
unreasonably interfere with the performance of a Minister's functions.
This item repeals existing section 24 of the FOI Act and substitutes new
sections 24, 24AA and 24AB.  The new provisions are intended to have the
same scope as existing section 24, with the qualification that new section
24 may be invoked for the purposes of two or more applications seeking
access to the same documents or to documents where the subject matter is
substantially the same.  In the latter case, this provision is intended to
address circumstances where applicants make several separate applications
over short periods for related documents (for example, request A may be for
documents on file for January in a specific matter and requests B and C may
be for documents on file for February and March in the same matter).

New section 24 is also amended to enhance the consultation scheme so that
onerous requests may be narrowed.  That measure implements recommendation
32 of the Open government report.

Item 33 - section 24A
Item 33 repeals existing section 24A of the FOI Act and substitutes
proposed section 24A.  Proposed section 24A reflects the scope of existing
section 24A.  However, it is extended to permit an agency to refuse an
access request after having made reasonable endeavours to request documents
from a contractor or subcontractor pursuant to a contractual right to
request the documents for the purposes of responding to an FOI request.
This measure is related to the amendment proposed at item 19 to apply the
FOI Act to documents held by contracted service providers in connection
with a contract to provide services to the community on behalf of an
agency.  A ground where it may be necessary to refuse a request under
proposed new subsection 24A(2) is if the contractor is in liquidation or
has been uncooperative.

Item 34 - subsection 29(1)
This item omits words related to application fees.  Application fees are
proposed to be abolished for all applications under the FOI Act (other than
for applications to the AAT).

Item 35 - section 30A
This item repeals existing section 30A of the FOI Act, which deals with the
remission of application fees.  Application fees are proposed to be
abolished for all applications under the FOI Act (other than for
applications to the AAT).

Item 36 - section 92A
This item is an amendment consequential to the amendment proposed at items
24 and 25.

Item 37 - Paragraph 94(2)(a)
This item removes words from existing section 94 of the FOI Act (the
regulation making power) which limit the ability for regulations to be made
that vary charges according to whether the applicant is in a particular
class.  Upon releasing the exposure draft of this Bill, the Government
announced that the first five hours of decision-making time for journalists
and not-for-profit community groups would be free of charge.  The amendment
proposed in this item is necessary to implement that measure.

Item 38 - Division 1 of Part II of Schedule 2 (after the item relating to
the Commonwealth Scientific and Industrial Research Organisation)
The Department of Defence is proposed to be excluded for documents in
respect of its collection, reporting or analysis of operational
intelligence, and special access programs under which a foreign government
provides restricted access to technologies.  The purpose is to exempt
documents in respect of intelligence collection operations conducted by
Defence personnel or platforms (such as submarines and aircraft) which are
not part of the exempted intelligence agencies.  It is also intended to
exempt the information collected in those operations and resulting analysis
or reports.  As with other intelligence documents, due to their extremely
high sensitivity the vast majority, if not all, of these documents would be
exempt from disclosure.

This item will also exempt documents in respect of special access programs
under which a foreign government provides access to highly classified
technologies or capabilities, or highly classified Defence applications for
technologies or capabilities.  Examples of potential Special Access
Programs (SAPS) include, but are not limited to the following:
    . a specific technology with potential for weaponisation that provides a
      significant technical lead or tactical advantage over potential
      adversaries;
    . a sensitive technology or unique capability especially vulnerable to
      foreign intelligence exploitation without special protections; or
    . an emerging technology, proposed operation, or intelligence activity
      risking the compromise of other SAPS.

Access to these programs is provided under an international agreement or
arrangement and on the basis that the foreign government requires enhanced
security protections because of the threat and/or vulnerability of the
information to be protected.  Such programs are highly classified (at least
at the SECRET level) with tightly controlled access and stringent security
measures.  The exemption is intended to cover the classified technologies,
classified applications, their use and related information.  All of these
documents would be exempt from disclosure.

A related measure at item 21 of this schedule (new subsections 7(2C) and
7(2D) applies the exclusion to a Minister and an agency holding documents
of this kind.

Item 39 - Division 1 of Part II of Schedule 2 (the item relating to the
Federal Airports Corporation)
This item repeals the existing exclusion for the Federal Airports
Corporation as this body no longer exists.

Part 2 - application provisions

Item 40 - application - items 2, 3, 7, 16, 19 and 33
This item has the effect that the amendments relating to Commonwealth
contracts apply only to those contracts entered into at or after the
commencement of the relevant items.

Item 41 - items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39
This item has the effect that the relevant amendments do not apply to FOI
requests on hand, and apply only to those requests for access under section
15 of the FOI Act or applications under section 48 of the Act that are
received at or after the commencement of the relevant items.

Part 3 - Amendment of other Acts

Australian Crime Commission Act 2002

Item 42 - Schedule 1
Under section 20 of the Australian Crime Commission Act, an examiner for
the purposes of that Act has power to require the production of information
from agencies relevant to an investigation.  It is an offence to fail to
comply with a notice unless production is prohibited under certain
prescribed secrecy provisions.  Section 58 of the FOI Act is a prescribed
provision for that purpose.  However, that section deals with powers of the
Administrative Appeals Tribunal in respect of an application for merits
review of an FOI decision.  Section 58 of the FOI Act does not prohibit
publication of information, and its prescription as a provision for the
purposes of section 20 of the Australian Crime Commission Act appears to be
an error.  For that reason, the reference to section 58 of the FOI Act in
section 20 of the Australian Crime Commission Act is proposed for repeal.

Environmental Protection and Biodiversity Conservation Act 1999

Items 43 - 48
These proposed amendments are to improve clarity in so far as a number of
provisions in the Environmental Protection and Biodiversity Conservation
Act 1999 restrict the publication of documents and information (related to
certain reports and instruments under the Act) by reference to grounds of
exemption under the FOI Act.  The references are by description of
exemptions grounds and do not refer to provision numbers in the FOI Act.
The amendments proposed in the Bill seek to align the descriptive
references to actual grounds for exemption under the FOI Act as amended by
the Bill as follows:
 . reference to the ground of 'the security of the Commonwealth' will be
   replaced by 'an exempt document under subparagraph 33(a)(i)' of the FOI
   Act, which is that part of the national security related exemption that
   refers to the 'security' of the Commonwealth;
 . reference to the ground of 'providing advice to the Minister' will be
   replaced by reference to the deliberative documents exemption (proposed
   section 47C in Schedule 3); and
 . reference to the ground of 'commercial confidence' will be replaced by
   reference to the trade secrets exemption (proposed section 47 in
   Schedule 3) and to the business exemption (proposed section 47G in
   Schedule 3).

Inspector-General of Intelligence and Security Act 1986

Items 49 - 52
These items are consequential amendments to the secrecy provision in the
IGIS Act that arise as a result of the proposal to require the IGIS to give
evidence in an Information Commissioner review in certain circumstances
(see Division 9 of proposed Part VII in item 34 of Schedule 4 to this
Bill).
Schedule 7 - Privacy Commissioner transition

Part 1 - Preliminary

Item 1 - Definitions
Item 1 defines a number of terms used throughout Schedule 7.  The term
commencement day is defined to mean the day on which the proposed
Information Commissioner Act commences.

Part 2 - Office holders, staff and consultants

Item 2 - Privacy Commissioner
The effect of this is to preserve the appointment of the Privacy
Commissioner for the remainder of the Commissioner's term.  It provides for
the person holding the office as Privacy Commissioner at the time of the
commencement day to become the Privacy Commissioner within the new Office
of the Information Commissioner, for the balance of the term of that
person's appointment.

Item 3 - Staff
The effect of item 3 is to deem existing staff agreements to have been made
with the Information Commissioner, thereby preserving the existing terms of
employment for staff of the Office of the Privacy Commissioner.

Item 4 - Consultants
This item provides for a consultant engaged by the Privacy Commissioner
before the commencement day to continue to be engaged by the Information
Commissioner under the proposed Information Commissioner Act.

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

Item 5
This item deems anything done by, or in relation to, the Privacy
Commissioner to have been done by the Information Commissioner (with
additional provision permitting the Minister to make a determination that
exempts certain things from this provision if needed).  Subitem 5(4)
provides that such a determination is not a legislative instrument.  The
provision is merely declaratory of the law (to assist readers) and is not
an exemption from the Legislative Instruments Act 2003.

Items 6 to 10
These items ensure that things being undertaken at commencement can be
continued on by the Information Commissioner (in practice this will mean
that any of the information officers can continue relevant things).

Part 4 - Investigations

Items 11 to 15
These items relate to the transition of investigations started by the
Privacy Commissioner before the commencement day.

Part 5 - Written instruments and reporting requirements

Item 16 - References in instruments
This item provides for instruments in force before the commencement day
that refer to the Privacy Commissioner to, after the commencement day, have
effect as if the reference was to the Information Commissioner.  Additional
provision is made to permit the Minister to make a determination to
preserve a reference to the Privacy Commissioner in an instrument if
needed.  Subitem 16(4) provides that such a determination is not a
legislative instrument.  The provision is merely declaratory of the law (to
assist readers) and is not an exemption from the Legislative Instruments
Act 2003.

Item 17 - Reporting requirements
The effect of this item is that the annual report on the operation of the
Privacy Act will be completed by the Information Commissioner for that much
of the relevant period that occurred before commencement (and that any
outstanding reporting requirements will be fulfilled by the Information
Commissioner).

Part 6 - Legal and other proceedings

Items 18 to 22
These items provide for transitional matters relating to legal and other
types of proceedings involving the Privacy Commissioner, including
proceedings in which the Privacy Commissioner was a party, and reviews and
examinations that were being undertaken by the Privacy Commissioner.  The
items provide for appropriate transitions to the Information Commissioner.

Part 7 - Miscellaneous

Items 23 to 27
These items provide for various transitional matters related to the Privacy
Commissioner or the Privacy Act, and also allow for regulations to be made
on matters of a transitional nature relating to the Bill.