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Queensland
Freedom of Information and
Other Legislation Amendment
Bill 2005
Queensland
Freedom of Information and Other
Legislation Amendment Bill 2005
Contents
Page
Chapter 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Chapter 2 Freedom of information amendments
Part 1 Amendment of Freedom of Information Act 1992
3 Act amended in pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4 Replacement of ss 4 and 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4 Object of Act and its achievement . . . . . . . . . . . . . . . 12
5 Amendment of s 7 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6 Amendment of s 8 (Meaning of agency) . . . . . . . . . . . . . . . . . . . 15
7 Amendment of s 9 (Meaning of public authority) . . . . . . . . . . . . . 16
8 Insertion of new s 9A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9A Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9 Amendment of s 11 (Act not to apply to certain bodies etc.) . . . . 16
10 Insertion of new ss 11D11E . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11D Application of Act to other Acts . . . . . . . . . . . . . . . . . 20
11E Application of Act to offenders . . . . . . . . . . . . . . . . . . 20
11 Amendment of s 18 (Publication of information concerning
affairs of agencies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
12 Amendment of s 20 (Notices to require specification of
documents in statements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Amendment of s 22 (Documents to which access may be
refused) ...................................... 22
14 Amendment of s 25 (How applications for access are made) . . . 22
15 Replacement of s 25 (How applications for access are made) . . 23
25 How applications for access are made. . . . . . . . . . . . 23
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Freedom of Information and Other Legislation
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25A Initial duties of agency or Minister in relation to
application .............................. 25
16 Amendment of s 26 (Transfer of applications) . . . . . . . . . . . . . . . 26
17 Amendment of s 27 (How applications are dealt with) . . . . . . . . . 27
18 Insertion of new s 28B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
28B Refusal of access--document nonexistent or
unlocatable .............................. 27
19 Replacement of ss 2829D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
27A Calculation of appropriate period for s 27 . . . . . . . . . 28
28 Refusal of access--matter or document exempt . . . . 30
28A Refusal of access--document nonexistent or
unlocatable .............................. 30
29 Refusal to deal with application--agency's or
Minister's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
29A What an agency or Minister must do before refusing
to deal with application under s 29 . . . . . . . . . . . . . . . 32
29B Refusal to deal with application--previous
application for same documents. . . . . . . . . . . . . . . . . 34
20 Insertion of new s 31A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
31A Time limit for access. . . . . . . . . . . . . . . . . . . . . . . . . . 36
21 Replacement of s 33 (Persons who are to make decisions for
agencies and Ministers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
33 Persons who are to make decisions for agencies
and Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
22 Amendment of s 34 (Notification of decisions and reasons) . . . . 37
23 Insertion of new pt 3, div 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Division 1A Fees and charges
35A Meaning of financial hardship. . . . . . . . . . . . . . . . . . . 38
35B Fees and charges for access to documents not
concerning personal affairs . . . . . . . . . . . . . . . . . . . . 39
35C Waiver of fees and charges . . . . . . . . . . . . . . . . . . . . 40
35D Process for assessment of charges . . . . . . . . . . . . . . 40
35E Refund of excess payment . . . . . . . . . . . . . . . . . . . . . 40
24 Amendment of s 42 (Matter relating to law enforcement or
public safety) ...................................... 40
25 Amendment of s 44 (Matter affecting personal affairs). . . . . . . . . 42
26 Amendment of s 45 (Matter relating to trade secrets, business
affairs and research). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
27 Amendment of s 46 (Matter communicated in confidence) . . . . . 43
28 Insertion of new pt 3, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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Freedom of Information and Other Legislation
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Division 2A Children
50A Applications on behalf of children and matters
affecting personal affairs of children. . . . . . . . . . . . . . 44
29 Amendment of s 51 (Disclosure that may reasonably be
expected to be of substantial concern). . . . . . . . . . . . . . . . . . . . . 46
30 Replacement of s 52 (Internal review) . . . . . . . . . . . . . . . . . . . . . 47
52 Internal review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
52A Who is aggrieved by a decision for s 52 . . . . . . . . . . . 49
31 Replacement of ss 53 and 54. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
53 Person may apply for amendment of information . . . . 51
54 Form of application for amendment of information . . . 51
54A Transfer of applications. . . . . . . . . . . . . . . . . . . . . . . . 52
54B Refusal to deal with application--agency's or
Minister's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
54C What an agency or Minister must do before refusing
to deal with application under s 54B. . . . . . . . . . . . . . 54
54D Refusal to deal with application--previous
application for same amendment . . . . . . . . . . . . . . . . 56
54E Discretion to amend information. . . . . . . . . . . . . . . . . 57
32 Amendment of s 55 (Agency or Minister may amend information) 58
33 Amendment of s 57 (Time within which agency or Minister must
notify applicant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
34 Replacement of s 59 (Certain notations required to be added) . . 59
59 Particular notations required to be added . . . . . . . . . 59
35 Replacement of s 60 (Internal review) . . . . . . . . . . . . . . . . . . . . . 60
60 Internal review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
36 Omission of pt 5, divs 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
37 Renumbering of pt 5, divs 4 and 5 . . . . . . . . . . . . . . . . . . . . . . . . 62
38 Amendment of s 73 (Applications for review) . . . . . . . . . . . . . . . . 62
39 Replacement of s 74 (Commissioner to notify) . . . . . . . . . . . . . . 62
74 Commissioner to notify agency or Minister . . . . . . . . 63
40 Replacement of ss 76 and 77. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
76 Inspection by commissioner of documents from
agency or Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
77 Commissioner may decide not to review . . . . . . . . . . 64
41 Replacement of s 79 (Applications where decisions delayed) . . . 65
79 Applications where decisions delayed . . . . . . . . . . . . 65
42 Replacement of s 81 (Onus to lie with agencies and Ministers). . 66
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81 Onus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
43 Amendment of s 83 (Conduct of reviews) . . . . . . . . . . . . . . . . . . 67
44 Replacement of ss 87 and 88. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
86A False or misleading information . . . . . . . . . . . . . . . . . 67
87 Commissioner to ensure non-disclosure of
particular matter . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
87A Exception for successful challenge of s 35 notice . . . 68
88 Powers of commissioner on review . . . . . . . . . . . . . . 69
45 Insertion of new s 89A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
89A Correction of mistakes in decisions . . . . . . . . . . . . . . 69
46 Amendment of s 93 (Secrecy) . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
47 Amendment of s 94 (Failure to produce documents or attend
proceedings). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
48 Insertion of new ss 96A and 96B . . . . . . . . . . . . . . . . . . . . . . . . . 70
96A Vexatious applicants. . . . . . . . . . . . . . . . . . . . . . . . . . 70
96B Declaration may be varied or revoked . . . . . . . . . . . . 71
49 Insertion of new s 99A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
99A Third party proceedings . . . . . . . . . . . . . . . . . . . . . . . 72
50 Amendment of s 101 (Reports of commissioner) . . . . . . . . . . . . . 72
51 Insertion of new pt 5A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Part 5A Office of the Information Commissioner
Division 1 General
101A The Information Commissioner and Office. . . . . . . . . 73
101B Office is a statutory body . . . . . . . . . . . . . . . . . . . . . . 73
101C Functions of commissioner. . . . . . . . . . . . . . . . . . . . . 73
101D Control of the office . . . . . . . . . . . . . . . . . . . . . . . . . . 76
101E Commissioner not subject to direction . . . . . . . . . . . . 76
101F Budget and performance . . . . . . . . . . . . . . . . . . . . . . 76
Division 2 Information Commissioner
101G Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
101H Procedure before appointment . . . . . . . . . . . . . . . . . . 77
101I Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 77
101J Remuneration and conditions. . . . . . . . . . . . . . . . . . . 78
101K Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
101L Preservation of rights if public service officer
appointed ............................. 78
101M Oath before performing duties . . . . . . . . . . . . . . . . . . 79
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101N Restriction on outside employment . . . . . . . . . . . . . . 79
101O Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
101P Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . 79
Division 3 Commissioner may be removed or suspended
from office
101Q Grounds for removal or suspension from office . . . . . 80
101R Removal of commissioner on address . . . . . . . . . . . . 80
101S Suspension of commissioner on address. . . . . . . . . . 81
101T Suspension of commissioner if Assembly not sitting . 82
101U Acts Interpretation Act 1954 . . . . . . . . . . . . . . . . . . . . 83
Division 4 Staff of the office
101V Staff employed under Public Service Act 1996 . . . . . 83
101W Staff subject only to direction of commissioner . . . . . 83
52 Amendment of s 105 (Precautions) . . . . . . . . . . . . . . . . . . . . . . . 83
53 Amendment of s 106 (Offence of unlawful access) . . . . . . . . . . . 84
54 Amendment of s 108 (Report to Legislative Assembly by
agencies and Ministers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
55 Insertion of new s 108C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
108C Functions of parliamentary committee . . . . . . . . . . . . 85
56 Replacement of s 109 (Regulations) . . . . . . . . . . . . . . . . . . . . . . 86
109 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . 86
57 Insertion of new pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Part 10 Transitional provisions for Freedom of
Information and Other Legislation Amendment
Act 2005
113 Definition for pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
114 Application of amendments to existing applications . . 87
115 Application of particular amendments to reviews etc. 88
116 Charges for existing applications for access . . . . . . . 89
117 Continuation of appointment as commissioner . . . . . 89
118 Continuation of current staff member's employment
under Public Service Act 1996 . . . . . . . . . . . . . . . . . . 89
119 Report to Legislative Assembly . . . . . . . . . . . . . . . . . 91
120 Reports of commissioner . . . . . . . . . . . . . . . . . . . . . . 91
121 Amendment of regulation by Freedom of Information
and Other Legislation Amendment Act 2005 does
not affect powers of Governor in Council . . . . . . . . . . 91
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Freedom of Information and Other Legislation
Amendment Bill 2005
122 Re-enactment of regulation-making power does not
affect validity of Freedom of Information Regulation
1992 .................................. 92
58 Amendment of sch 1 (Secrecy provisions giving exemption) . . . . 92
59 Amendment of sch 2 (Application of Act to GOCs) . . . . . . . . . . . 92
60 Insertion of new sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Schedule 3 Application of Act to other Acts
61 Insertion of new sch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Schedule 4 Process for assessment of charges
1 Preliminary assessment of charges . . . . . . . . . . . . . . 94
2 Deemed withdrawal of application . . . . . . . . . . . . . . . 95
3 Objection notice ........................... 95
4 New preliminary assessment notice. . . . . . . . . . . . . . 96
5 Notice that charges waived . . . . . . . . . . . . . . . . . . . . 97
6 Notice of other decision . . . . . . . . . . . . . . . . . . . . . . . 97
7 Deemed decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
8 Concession card given and accepted . . . . . . . . . . . . 98
9 Concession card given but not accepted . . . . . . . . . . 99
10 Financial hardship claim if agency is a department . . 100
11 Final assessment notice. . . . . . . . . . . . . . . . . . . . . . . 100
Part 2 Amendment of Freedom of Information Regulation 1992
62 Regulation amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
63 Omission of ss 5 and 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
64 Replacement of ss 7 to 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
7 Amount of charges--Act, s 7, definitions access
charge and processing charge . . . . . . . . . . . . . . . . . . 102
8 No charge for less than 2 hours . . . . . . . . . . . . . . . . . 102
9 No charge for particular search and retrieval time . . . 103
10 Deposit--Act, s 35B(6). . . . . . . . . . . . . . . . . . . . . . . . 103
11 Prescribed person--Act, sch 4, s 10(6) . . . . . . . . . . . 103
65 Replacement of schedule (Charges) . . . . . . . . . . . . . . . . . . . . . . 104
Part 3 Amendment of Lotteries Act 1997
66 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
67 Insertion of new s 225A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
225A Golden Casket Lottery Corporation Limited
exemption from application of Freedom of
Information Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 105
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Freedom of Information and Other Legislation
Amendment Bill 2005
Part 4 Amendment of Public Records Act 2002
68 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
69 Amendment of s 16 (Meaning of restricted access period) . . . . . 106
70 Amendment of s 18 (Public access to public records) . . . . . . . . . 106
Part 5 Amendment of Public Sector Ethics Act 1994
71 Act amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
72 Amendment of s 28 (Functions of integrity commissioner) . . . . . 107
73 Amendment of s 33 (Secrecy) . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
74 Insertion of new ss 33A and 33B . . . . . . . . . . . . . . . . . . . . . . . . . 107
33B Authorisation of particular disclosures--ethics or
integrity issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
75 Amendment of s 34 (Authorisation of particular disclosures) . . . . 108
76 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 109
Part 6 Amendment of Public Service Act 1996
77 Act amended in pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
78 Insertion of new pt 11, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Division 4 Transitional provision for Freedom of
Information and Other Legislation Amendment
Act 2005
147 Amendment of regulation by Freedom of Information
and Other Legislation Amendment Act 2005 does
not affect powers of Governor in Council . . . . . . . . . . 109
79 Amendment of sch 1 (Public service offices and their heads) . . . 109
Part 7 Amendment of Public Service Regulation 1997
80 Regulation amended in pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
81 Omission of s 30 (Declared government entity and declared
public sector unit--Act, ss 20 and 21) . . . . . . . . . . . . . . . . . . . . . 110
Chapter 3 Other Amendments
Part 1 Amendment of Legal Profession Act 2004
82 Act amended in pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
83 Amendment of s 281 (Orders to be filed in Supreme Court and
information notices to be given to parties etc.). . . . . . . . . . . . . . . 111
84 Amendment of s 293 (Appeal to tribunal against committee's
decision) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
85 Amendment of s 470 (Conduct of committee for hearing and
deciding discipline applications) . . . . . . . . . . . . . . . . . . . . . . . . . . 111
86 Amendment of ch 8, pt 5, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
87 Replacement of s 616 (Records of Solicitors' Board and
Barristers' Board) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
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616 Records of Solicitors' Board and Barristers' Board . . 112
88 Insertion of ch 8, pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Part 6 Transitional provision for Freedom of
Information and Other Legislation Amendment
Act 2005
644 Amendment of regulation does not affect powers of
Governor in Council . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Part 2 Amendment of Legal Profession Regulation 2004
89 Regulation amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
90 Omission of ss 33 and 34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Part 3 Amendment of Standard Time Act 1894
91 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
92 Amendment of title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
93 Omission of preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
94 Replacement of s 3 (The time of the 150th meridian to be
standard time) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
3 Standard time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
95 Insertion of new s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
5 Transitional provision for Freedom of Information
and Other Legislation Amendment Act 2005 . . . . . . . 114
2005
A Bill
for
An Act to amend the Freedom of Information Act 1992 and
other legislation
s1 10 s2
Freedom of Information and Other Legislation
Amendment Bill 2005
The Parliament of Queensland enacts-- 1
Chapter 1 Preliminary 2
Clause 1 Short title 3
This Act may be cited as the Freedom of Information and 4
Other Legislation Amendment Act 2005. 5
Clause 2 Commencement 6
(1) The following provisions commence on 1 July 2005-- 7
· section 36(1);1 8
· section 51, other than to the extent it inserts new 9
section 101C;2 10
· section 57 to the extent it inserts new sections 117 and 11
118;3 12
· chapter 2, parts 6 and 7.4 13
(2) Chapter 3, part 3 commences on 1 September 2005.
5
14
(3) The remaining provisions, other than the prescribed 15
provisions, commence on a day to be fixed by proclamation. 16
17
Note--
18
The prescribed provisions commence on assent--see the Acts
19
Interpretation Act 1954, section 15A.
(4) In this section-- 20
1 Section 36 (Omission of pt 5, divs 13)
2 Section 51 (Insertion of new pt 5A), new section 101C (Functions of commissioner)
3 Section 57 (Insertion of new pt 10), new sections 117 (Continuation of appointment
as commissioner) and 118 (Continuation of current staff member's employment
under Public Service Act 1996)
4 Chapter 2 (Freedom of information amendments), parts 6 (Amendment of Public
Service Act 1996) and 7 (Amendment of Public Service Regulation 1997)
5 Chapter 3 (Other amendments), part 3 (Amendment of Standard Time Act 1894)
s2 11 s2
Freedom of Information and Other Legislation
Amendment Bill 2005
prescribed provisions means the following provisions-- 1
· section 3 6
2
· section 5(1)7 to the extent it inserts the definition backup 3
system 4
· sections 8, 9 and 108 5
· sections 13 and 149 6
· section 1810 7
· sections 24, 25, 26 and 27 11
8
· section 57 to the extent it inserts the new part 9
10 heading and sections 113, 114 and 11512 10
· sections 58, 59, 60, 62 and 6313 11
· chapter 2, parts 3 to 514 12
· chapter 3, parts 1 and 2.15 13
6 Section 3 (Act amended in pt 1)
7 Section 5 (Amendment of s 7 (Definitions))
8 Sections 8 (Insertion of new s 9A), 9 (Amendment of s 11 (Act not to apply to
certain bodies etc.)) and 10 (Insertion of new ss 11D11E)
9 Sections 13 (Amendment of s 22 (Documents to which access may be refused)) and
14 (Amendment of s 25 (How applications for access are made))
10 Section 18 (Insertion of new s 28B)
11 Sections 24 (Amendment of s 42 (Matter relating to law enforcement or public
safety)), 25 (Amendment of s 44 (Matter affecting personal affairs)),
26 (Amendment of s 45 (Matter relating to trade secrets, business affairs and
research)) and 27 (Amendment of s 46 (Matter communicated in confidence)
12 Section 57 (Insertion of new pt 10), new sections 113 (Definition for pt 10),
114 (Application of amendments to existing applications) and 115 (Application of
particular amendments to reviews etc.)
13 Sections 58 (Amendment of sch 1 (Secrecy provisions giving exemption)),
59 (Amendment of sch 2 (Application of Act to GOCs)), 60 (Insertion of new
sch 3), 62 (Regulation amended in pt 2) and 63 (Omission of ss 5 and 5A)
14 Chapter 2 (Freedom of information amendments), parts 3 (Amendment of Lotteries
Act 1997), 4 (Amendment of Public Records Act 2002) and 5 (Amendment of
Public Sector Ethics Act 1994)
s3 12 s4
Freedom of Information and Other Legislation
Amendment Bill 2005
Chapter 2 Freedom of information 1
amendments 2
Part 1 Amendment of Freedom of 3
Information Act 1992 4
Clause 3 Act amended in pt 1 5
This part amends the Freedom of Information Act 1992. 6
Clause 4 Replacement of ss 4 and 5 7
Sections 4 and 5-- 8
omit, insert-- 9
`4 Object of Act and its achievement 10
`(1) The object of this Act is to extend as far as possible the right 11
of the community to have access to information held by 12
Queensland government. 13
`(2) Parliament recognises that, in a free and democratic society-- 14
(a) the public interest is served by promoting open 15
discussion of public affairs and enhancing government's 16
accountability; and 17
(b) the community should be kept informed of 18
government's operations, including, in particular, the 19
rules and practices followed by government in its 20
dealings with members of the community; and 21
(c) members of the community should have access to 22
information held by government in relation to their 23
personal affairs and should be given a way to ensure the 24
15 Chapter 3 (Other amendments), parts 1 (Amendment of Legal Profession Act 2004)
and 2 (Amendment of Legal Profession Regulation 2004)
s5 13 s5
Freedom of Information and Other Legislation
Amendment Bill 2005
information is accurate, complete, up-to-date and not 1
misleading. 2
`(3) Parliament also recognises there are competing interests in 3
that the disclosure of particular information could be contrary 4
to the public interest because its disclosure in some instances 5
would have a prejudicial effect on-- 6
(a) essential public interests; or 7
(b) the private or business affairs of members of the 8
community about whom information is collected and 9
held by government. 10
`(4) This Act is intended to strike a balance between those 11
competing interests. 12
`(5) The object of this Act is achieved by-- 13
(a) giving members of the community a right of access to 14
information held by government to the greatest extent 15
possible with limited exceptions for the purpose of 16
preventing a prejudicial effect on the public interest of a 17
kind mentioned in subsection (3); and 18
(b) requiring particular information and documents 19
concerning government operations to be made available 20
to the public; and 21
(c) giving members of the community a right to bring about 22
the amendment of documents held by government 23
containing information in relation to their personal 24
affairs to ensure the information is accurate, complete, 25
up-to-date and not misleading. 26
`(6) It is Parliament's intention that this Act be interpreted to 27
further the object stated in subsection (1) in the context of the 28
matters stated in subsections (2) to (5).'. 29
Clause 5 Amendment of s 7 (Definitions) 30
(1) Section 7-- 31
insert-- 32
s5 14 s5
Freedom of Information and Other Legislation
Amendment Bill 2005
`access charge, in relation to an application for access to a 1
document, means the charge prescribed under a regulation in 2
relation to the provision of access to the document. 3
agent, in relation to an application, means a person who 4
makes the application on behalf of another person. 5
applicant, in relation to an application, means-- 6
(a) if the application is made on behalf of a person--the 7
person; or 8
(b) otherwise--the person making the application. 9
application fee, in relation to an application for access to a 10
document, means the application fee prescribed under a 11
regulation. 12
backup system means a system that has, for disaster recovery 13
purposes, copied electronic data onto a separate data storage 14
medium, for example, onto a backup tape. 15
concession card means a health care card or pensioner 16
concession card under the Social Security Act 1991 (Cwlth) or 17
a pensioner concession card issued by the department of the 18
Commonwealth in which the Veterans' Entitlements Act 1986 19
(Cwlth) is administered. 20
final assessment notice see schedule 4, section 11(1). 21
financial hardship see section 35A. 22
objection notice see schedule 4, section 3(2). 23
office means the Office of the Information Commissioner. 24
original charge, in relation to an application for access to a 25
document, means an agency's or Minister's preliminary 26
assessment of the total amount of the processing charge and 27
access charge payable by the applicant. 28
original deposit, in relation to an application for access to a 29
document, means, if the agency or Minister concerned 30
considers it appropriate that an applicant pay a deposit on 31
account of the original charge, a deposit of the amount 32
provided for under a regulation. 33
preliminary assessment notice, see schedule 4, section 1(2). 34
s6 15 s6
Freedom of Information and Other Legislation
Amendment Bill 2005
processing charge, in relation to an application for access to a 1
document, means the charge prescribed under a regulation for 2
searching for or retrieving the document, or making, or doing 3
things related to making, a decision on the application.'. 4
(2) Section 7, definition charge, `under section 29(1)'-- 5
omit. 6
(3) Section 7, definition document, after paragraph (c)-- 7
insert-- 8
9
`Note--
10
Under the Acts Interpretation Act 1954, section 36, document
11
includes--
12
(a) any paper or other material on which there is writing; and
13
(b) any paper or other material on which there are marks, figures,
14
symbols or perforations having a meaning for a person qualified
15
to interpret them; and
16
(c) any disc, tape or other article or any material from which sounds,
17
images, writings or messages are capable of being produced or
18
reproduced (with or without the aid of another article or device).'.
(4) Section 7, definition official document of a Minister or official 19
document of the Minister, after `means a document'-- 20
insert-- 21
`, other than a document of an agency,'. 22
Clause 6 Amendment of s 8 (Meaning of agency) 23
Section 8(2)-- 24
omit, insert-- 25
`(2) For this Act-- 26
(a) a board, council, committee, subcommittee or other 27
body established by government to help, or to perform 28
functions connected with, an agency is not a separate 29
agency, but is taken to be comprised within the agency; 30
and 31
(b) a reference to an agency includes a reference to a body 32
that is taken to be comprised within the agency.'. 33
s7 16 s9
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 7 Amendment of s 9 (Meaning of public authority) 1
(1) Section 9(1), definition public authority, paragraph (a)(ii)-- 2
omit, insert-- 3
`(ii) is established by government under an enactment 4
for a public purpose, whether or not the public 5
purpose is stated in the enactment; or'. 6
(2) Section 9(1), definition public authority, `; but does not 7
include' to `of this Act'-- 8
omit. 9
(3) Section 9(2)-- 10
omit. 11
(4) Section 9(3)-- 12
renumber as section 9(2). 13
Clause 8 Insertion of new s 9A 14
Part 1, division 3, after section 9-- 15
insert-- 16
`9A Notes in text 17
`A note in the text of this Act is part of the Act.'. 18
Clause 9 Amendment of s 11 (Act not to apply to certain bodies 19
etc.) 20
(1) Section 11(1)(e)-- 21
omit, insert-- 22
`(e) a court, or the holder of a judicial office or other office 23
connected with a court, in relation to the court's judicial 24
functions; or'. 25
(2) Section 11(1)-- 26
insert-- 27
s9 17 s9
Freedom of Information and Other Legislation
Amendment Bill 2005
`(fa) a tribunal, a tribunal member or the holder of an office 1
connected with a tribunal, in relation to the tribunal's 2
judicial or quasi-judicial functions; or 3
(fb) a registry of a tribunal, or the staff of a registry of a 4
tribunal in their official capacity, so far as its or their 5
functions relate to the tribunal's judicial or 6
quasi-judicial functions; or'. 7
(3) Section 11(1)(n)-- 8
omit, insert-- 9
`(n) Queensland Treasury Holdings Pty Ltd ACN 011 027 10
295, its wholly owned subsidiaries, and the entities 11
controlled by the subsidiaries, in relation to their 12
competitive commercial activities; or'. 13
(4) Section 11(1)(q)-- 14
omit, insert-- 15
`(r) Queensland Events Corporation Pty Ltd ACN 010 814 16
310, its wholly owned subsidiaries, and the entities 17
controlled by the subsidiaries, in relation to their 18
competitive commercial activities; or 19
(s) Gold Coast Events Co Pty Ltd ACN 010 949 649, its 20
wholly owned subsidiaries, and the entities controlled 21
by the subsidiaries, in relation to their competitive 22
commercial activities; or 23
(t) Gold Coast Motor Events Co in relation to its 24
competitive commercial activities; or 25
(u) the chief executive officer of a local government in 26
relation to keeping a register of interests under the Local 27
Government Act 1993, sections 247(1)(b) and 1139(2); 28
or 29
(v) the mayor of a local government in relation to keeping a 30
register of interests under the Local Government Act 31
1993, section 1139(1); or 32
(w) a parents and citizens association formed under the 33
Education (General Provisions) Act 1989; or 34
s9 18 s9
Freedom of Information and Other Legislation
Amendment Bill 2005
(x) a grammar school to which the Grammar Schools Act 1
1975 applies; or 2
(y) education agencies in relation to the following 3
information-- 4
(i) information contained in a certificate of 5
achievement; 6
(ii) individual or systemic information about the 7
performance of students in a test developed or 8
revised under the repealed Education (School 9
Curriculum P-10) Act 1996, section 13 or the 10
Education (Queensland Studies Authority) Act 11
2002, section 19; 12
(iii) individual or systemic information about the 13
performance of students in a core skills test 14
prepared under the repealed Education (Senior 15
Secondary School Studies) Act 1988, 16
section 6(1)(g); 17
(iv) individual or systemic student information in 18
relation to a year 2 diagnostic net assessment; 19
(v) individual or systemic student information in 20
relation to another type of assessment prescribed 21
under the Education (Queensland Studies 22
Authority) Act 2002, section 11(2); 23
(vi) information in relation to the ranking of a person 24
for tertiary entrance under the repealed Education 25
(Tertiary Entrance Procedures Authority) Act 1990 26
or the Education (Queensland Studies Authority) 27
Act 2002; 28
(vii) assessment data as defined under the Education 29
(Queensland Studies Authority) Act 2002.'. 30
(5) Section 11(1)(pa)-- 31
renumber as section 11(1)(q). 32
(6) Section 11(2)-- 33
omit, insert-- 34
s9 19 s9
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) In subsection (1), a reference to an entity in relation to a 1
particular function or activity means that this Act does not 2
apply to the entity in relation to documents received, or 3
brought into existence, by it in performing the function or 4
carrying on the activity. 5
`(3) In this section, a reference to a repealed Act includes a 6
reference to the repealed Act as originally enacted and as in 7
force from time to time. 8
`(4) In this section-- 9
certificate of achievement means a certificate, issued under 10
the repealed Education (Senior Secondary School Studies) Act 11
1988 or the Education (Queensland Studies Authority) Act 12
2002, recording details of a person's achievement in the study 13
of an area of learning. 14
control has the meaning given by the Corporations Act. 15
education agencies means-- 16
(a) the Queensland Studies Authority; and 17
(b) the department in which the Education (Queensland 18
Studies Authority) Act 2002 is administered. 19
tribunal means-- 20
(a) the Anti-Discrimination Tribunal; or 21
(b) the Children Services Tribunal; or 22
(c) the Commercial and Consumer Tribunal; or 23
(d) the Guardianship and Administration Tribunal; or 24
(e) the Land and Resources Tribunal; or 25
(f) the Land Tribunal; or 26
(g) the Mental Health Tribunal. 27
wholly owned subsidiary has the meaning given by the 28
Corporations Act. 29
year 2 diagnostic net assessment means the process for the 30
assessment of the literacy and numeracy development of 31
students in the years of schooling up to and including the 32
year 3 year of schooling.'. 33
s 10 20 s 10
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 10 Insertion of new ss 11D11E 1
After section 11C-- 2
insert-- 3
`11D Application of Act to other Acts 4
`(1) Schedule 3 lists provisions of other Acts that exclude or limit 5
the operation of this Act. 6
`(2) Schedule 3 is included for information purposes. 7
`11E Application of Act to offenders 8
`(1) An offender is not entitled to obtain access to a risk 9
assessment document received, or brought into existence, 10
by-- 11
(a) the department in which the Corrective Services Act 12
2000 is administered; or 13
(b) a corrections board as defined under that Act. 14
`(2) In this section-- 15
offender means an offender as defined under the Corrective 16
Services Act 2000 who is serving a term of imprisonment for a 17
prescribed offence, or serving a period of imprisonment that 18
includes a term of imprisonment for a prescribed offence, 19
whether the person was sentenced to the term or period of 20
imprisonment before or after the commencement of this 21
section. 22
23
Note--
24
Under the Corrective Services Act 2000, schedule 3, offender means--
25
(a) a prisoner; or
26
(b) a person who is subject to--
27
(i) a community based order; or
28
(ii) a conditional release order; or
29
(iii) a post-prison community based release order.
period of imprisonment see the Penalties and Sentences Act 30
1992, section 4. 31
prescribed offence means-- 32
s 11 21 s 11
Freedom of Information and Other Legislation
Amendment Bill 2005
(a) an offence against a provision mentioned in the 1
Penalties and Sentences Act 1992, schedule;16 or 2
3
Note--
4
See the Penalties and Sentences Act 1992, section 208(2).
(b) an offence against the Criminal Code, section 302;17 or 5
(c) an offence against the Criminal Code, section 359E.18 6
risk assessment document means a document, or that part of a 7
document, that assesses or is used for the assessment of-- 8
(a) the risk an offender may pose to the community; or 9
(b) a risk to the security or good order of a corrective 10
services facility as defined under the Corrective Services 11
Act 2000. 12
13
Example for paragraph (a)--
14
a document prepared to help the chief executive make a decision
15
under the Corrective Services Act 2000, section 12(3)(a),
16
57(2)(b), 75(2)(a) or 76(3)(a)19
term of imprisonment see the Penalties and Sentences Act 17
1992, section 4.'. 18
Clause 11 Amendment of s 18 (Publication of information 19
concerning affairs of agencies) 20
Section 18(2)-- 21
insert-- 22
`(i) particulars of any reading room or other facility 23
provided by the agency for use by applicants or 24
members of the community, and the publications, 25
documents or other information regularly on display in 26
the reading room or other facility.'. 27
16 Penalties and Sentences Act 1992, schedule (Serious violent offences)
17 Criminal Code, section 302 (Definition of murder)
18 Criminal Code, section 359E (Punishment of unlawful stalking)
19 Corrective Services Act 2000, section 12 (Prisoner classifications), 57 (Eligibility
for WORC and WCC programs), 75 (Eligibility for remission) or 76 (Eligibility for
conditional release)
s 12 22 s 14
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 12 Amendment of s 20 (Notices to require specification of 1
documents in statements) 2
Section 20-- 3
insert-- 4
`(4) If the principal officer fails to notify the person under 5
subsection (2)(b), the principal officer is taken to have 6
decided the person's opinion is incorrect.'. 7
Clause 13 Amendment of s 22 (Documents to which access may be 8
refused) 9
(1) Section 22(a) and (b)-- 10
omit, insert-- 11
`(a) a document the applicant can reasonably get access to 12
under another enactment, or under arrangements made 13
by an agency, whether or not the access is subject to a 14
fee or charge; or'. 15
(2) Section 22(e)-- 16
omit. 17
(3) Section 22(c) and (d)-- 18
renumber as section 22(b) and (c). 19
Clause 14 Amendment of s 25 (How applications for access are 20
made) 21
Section 25-- 22
insert-- 23
`(5) The application is taken only to apply to documents that are, 24
or may be, in existence on the day the application is received. 25
`(6) However, subsection (5) does not prevent an agency or 26
Minister giving access to a document created after the 27
application is received but before notice is given under 28
section 34 (a post-application document).20 29
20 Section 34 (Notification of decisions and reasons)
s 15 23 s 15
Freedom of Information and Other Legislation
Amendment Bill 2005
`(7) If an agency or Minister gives a person access to a 1
post-application document-- 2
(a) no processing charge or access charge is payable in 3
relation to the document; and 4
(b) the person is not entitled to a review under section 52 or 5
part 521 in relation to a decision about the document 6
made in relation to the application concerned. 7
`(8) The application for access to a document may not require an 8
agency or Minister to search for the document from a backup 9
system. 10
`(9) However, subsection (8) does not prevent an agency or 11
Minister searching for a document from a backup system if 12
the agency or Minister considers the search appropriate. 13
14
Note--
15
A search for a document from a backup system is not required before
16
access may be refused under section 28B except in the circumstances
17
mentioned in section 28B(4).'.
Clause 15 Replacement of s 25 (How applications for access are 18
made) 19
Section 25-- 20
omit, insert-- 21
`25 How applications for access are made 22
`(1) A person who wishes to obtain access to a document of an 23
agency or an official document of a Minister under this Act is 24
entitled to apply to the agency or Minister for access to the 25
document. 26
27
Notes--
28
If a document applied for does not concern the applicant's personal
29
affairs, the applicant must pay, at the time the application is made, an
30
application fee (see section 35B(2)).
31
For applications on behalf of a child, see section 50A (Applications on
32
behalf of children and matters affecting personal affairs of children).
21 Section 52 (Internal review) or part 5 (External review of decisions)
s 15 24 s 15
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) The application must-- 1
(a) be in writing; and 2
(b) provide sufficient information concerning the document 3
to enable a responsible officer of the agency or the 4
Minister to identify the document; and 5
(c) state the address to which notices under this Act may be 6
sent to the applicant; and 7
(d) if the application is being made on behalf of the 8
applicant--state the name of the applicant and the name 9
of the applicant's agent. 10
`(3) The application is taken only to apply to documents that are, 11
or may be, in existence on the day the application is received. 12
`(4) However, subsection (5) does not prevent an agency or 13
Minister giving access to a document created after the 14
application is received but before notice is given under 15
section 34 (a post-application document).22 16
`(5) If an agency or Minister gives a person access to a 17
post-application document-- 18
(a) no processing charge or access charge is payable in 19
relation to the document; and 20
(b) the person is not entitled to a review under section 52 or 21
part 523 in relation to a decision about the document 22
made in relation to the application concerned. 23
`(6) The application for access to a document may not require an 24
agency or Minister to search for the document from a backup 25
system. 26
`(7) However, subsection (6) does not prevent an agency or 27
Minister searching for a document from a backup system if 28
the agency or Minister considers the search appropriate. 29
22 Section 34 (Notification of decisions and reasons)
23 Section 52 (Internal review) or part 5 (External review of decisions)
s 15 25 s 15
Freedom of Information and Other Legislation
Amendment Bill 2005
1
Note--
2
A search for a document from a backup system is not required before
3
access may be refused under section 28B except in the circumstances
4
mentioned in section 28B(4).
`25A Initial duties of agency or Minister in relation to 5
application 6
`(1) If a person-- 7
(a) wishes to make an application under this Act to an 8
agency or Minister for access to a document (relevant 9
application); or 10
(b) has made a relevant application but it does not comply 11
with section 25; or 12
(c) has made a relevant application, or part of a relevant 13
application, to the wrong agency or Minister; 14
it is the duty of the agency or Minister to inform the person 15
how to make the application in a way that complies with 16
section 25 or to inform the person of the appropriate agency or 17
Minister to whom application should be made. 18
`(2) An agency or Minister must not refuse to deal with an 19
application because it does not comply with section 25 20
without first giving the applicant a reasonable opportunity of 21
consultation with a view to making an application in a form 22
complying with section 25. 23
`(3) If, after consulting under subsection (2), an agency or 24
Minister decides-- 25
(a) the application does not contain sufficient information 26
to enable a responsible officer of the agency or the 27
Minister to identify the document; or 28
(b) an application fee is payable, because a document 29
sought by the applicant does not concern the applicant's 30
personal affairs, but is unpaid; 31
the agency or Minister must give the applicant written notice 32
of the decision. 33
`(4) The time between the date of the notice and when the 34
applicant gives the information or pays the application fee 35
s 16 26 s 16
Freedom of Information and Other Legislation
Amendment Bill 2005
does not count as part of the appropriate period under 1
section 27.24 2
`(5) However, the applicant is taken to have withdrawn the 3
application if-- 4
(a) the applicant fails to give the information within 30 days 5
after the day the notice of a decision under 6
subsection (3)(a) is sent to the applicant; or 7
(b) after the applicant is sent the notice of a decision under 8
subsection (3)(b), the applicant fails to pay the 9
application fee-- 10
(i) if an application for review is made within the 11
period within which an application for review 12
under this Act may be made--within 30 days after 13
the review has been finally disposed of (unless on 14
the review it is decided the application fee is not 15
payable); or 16
(ii) otherwise--by the end of the period within which 17
an application for review under this Act may be 18
made.'. 19
Clause 16 Amendment of s 26 (Transfer of applications) 20
(1) Section 26(2), `(the receiving agency)'-- 21
omit, insert-- 22
`(the original agency)'. 23
(2) Section 26(2)(a), `receiving'-- 24
omit, insert-- 25
`original'. 26
(3) Section 26-- 27
insert-- 28
`(7) If part of an application is transferred under this section and 29
the transferred part of the application relates to a document 30
that does not concern the applicant's personal affairs, a 31
24 Section 27 (How applications are dealt with)
s 17 27 s 18
Freedom of Information and Other Legislation
Amendment Bill 2005
separate application fee is payable for the transferred part of 1
the application.'. 2
Clause 17 Amendment of s 27 (How applications are dealt with) 3
(1) Section 27(4), `the agency or Minister is taken'-- 4
omit, insert-- 5
`the agency's principal officer or the Minister is taken'. 6
(2) Section 27(4) to (6), as amended-- 7
renumber as section 27(5) to (7). 8
(3) Section 27(3)-- 9
omit, insert-- 10
`(3) If giving access to a document will disclose to the applicant 11
matter the agency or Minister reasonably considers is not 12
relevant to the application, the agency or Minister may delete 13
the irrelevant matter from a copy of the document before 14
giving access to the document. 15
`(4) The agency or Minister may give access to a document by 16
giving access to a copy of the document with the irrelevant 17
matter deleted only if the agency or Minister considers, from 18
the application or after consultation with the applicant-- 19
(a) the applicant would accept the copy; and 20
(b) it is reasonably practicable to give access to the copy.'. 21
Clause 18 Insertion of new s 28B 22
After section 28A-- 23
insert-- 24
`28B Refusal of access--document nonexistent or 25
unlocatable 26
`(1) An agency or Minister may refuse access to a document if the 27
agency or Minister is satisfied the document does not exist. 28
29
Example--
30
documents that have not been created
s 19 28 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) An agency or Minister may refuse access to a document if-- 1
(a) the agency or Minister is satisfied the document has 2
been or should be in the agency's or Minister's 3
possession; and 4
(b) all reasonable steps have been taken to find the 5
document but the document can not be found. 6
7
Examples--
8
· documents that have been lost
9
· documents that have been disposed of under an authority given by
10
the State Archivist
`(3) Subject to subsection (4), a search for a document from a 11
backup system is not required before refusing access under 12
this section. 13
`(4) A search for a document from a backup system is required 14
before refusing access under subsection (1) only if-- 15
(a) the document is-- 16
(i) a document required to be kept under the Public 17
Records Act 2002; and 18
(ii) not a document that the agency or Minister could 19
lawfully have disposed of under the Public 20
Records Act 2002; and 21
(b) the agency or Minister considers the document has been 22
kept in, and is retrievable from, the backup system.'. 23
Clause 19 Replacement of ss 2829D 24
Sections 28 to 29D-- 25
omit, insert-- 26
`27A Calculation of appropriate period for s 27 27
`(1) If an applicant gives an agency or Minister a copy of the 28
applicant's concession card, the period commencing on the 29
day the applicant gives the copy and ending on-- 30
s 19 29 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
(a) the day the applicant is notified of the decision of the 1
agency or Minister under schedule 4, section 8(2) or 2
schedule 4, section 9(2)(b);25 or 3
(b) the day the agency or Minister, having not notified the 4
applicant of the decision, is taken to have made a 5
decision under schedule 4, section 9(3); 6
does not count as part of the appropriate period under 7
section 27. 8
`(2) If an applicant is given a preliminary assessment notice before 9
the end of the original section 27 period applying to the 10
application, the period commencing on the day the applicant 11
is given the notice and ending on-- 12
(a) the day the applicant-- 13
(i) if no deposit is payable, agrees in writing to pay 14
the relevant charge; or 15
(ii) pays the relevant deposit and agrees in writing to 16
pay the relevant charge; or 17
(b) the day the applicant, having not agreed to pay the 18
relevant charge, or having not paid the relevant deposit 19
and agreed in writing to pay the relevant charge, is 20
notified of a decision, whether or not made on review, 21
that no charges are payable because the charges have 22
been wrongly assessed or are to be waived; 23
does not count as part of the appropriate period under 24
section 27. 25
26
Note--
27
The appropriate period for section 27 may also be affected by
28
section 29A(7).
`(3) In this section-- 29
original section 27 period, for an application, means the 30
period under the definition appropriate period in 31
section 27(7) that would apply to the application in the 32
absence of this section. 33
25 Schedule 4 (Process for assessment of charges), section 8 (Concession card given
and accepted) or section 9 (Concession card given but not accepted)
s 19 30 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
relevant charge means the original charge or amount of the 1
charge decided on review. 2
relevant deposit means the original deposit or the deposit, if 3
any, on account of the charge decided on review that the 4
applicant is required to pay. 5
review means consideration under this Act of an objection 6
notice. 7
`28 Refusal of access--matter or document exempt 8
`An agency or Minister may refuse access to exempt matter or 9
an exempt document. 10
`28A Refusal of access--document nonexistent or 11
unlocatable 12
`(1) An agency or Minister may refuse access to a document if the 13
agency or Minister is satisfied the document does not exist. 14
15
Example--
16
documents that have not been created
`(2) An agency or Minister may refuse access to a document if-- 17
(a) the agency or Minister is satisfied the document has 18
been or should be in the agency's or Minister's 19
possession; and 20
(b) all reasonable steps have been taken to find the 21
document but the document can not be found. 22
23
Examples--
24
· documents that have been lost
25
· documents that have been disposed of under an authority given by
26
the State Archivist
`(3) Subject to subsection (4), a search for a document from a 27
backup system is not required before refusing access under 28
this section. 29
`(4) A search for a document from a backup system is required 30
before refusing access under subsection (1) only if-- 31
(a) the document is-- 32
s 19 31 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
(i) a document required to be kept under the Public 1
Records Act 2002; and 2
(ii) not a document that the agency or Minister could 3
lawfully have disposed of under the Public 4
Records Act 2002; and 5
(b) the agency or Minister considers the document has been 6
kept in, and is retrievable from, the backup system. 7
`29 Refusal to deal with application--agency's or 8
Minister's functions 9
`(1) An agency or Minister may refuse to deal with an application 10
for access to documents or, if the agency or Minister is 11
considering 2 or more applications by the applicant, all the 12
applications, if the agency or Minister considers the work 13
involved in dealing with the application or all the applications 14
would, if carried out-- 15
(a) substantially and unreasonably divert the resources of 16
the agency from their use by the agency in the 17
performance of its functions; or 18
(b) interfere substantially and unreasonably with the 19
performance by the Minister of the Minister's functions. 20
`(2) Without limiting the matters to which the agency or Minister 21
may have regard in making a decision under subsection (1), 22
the agency or Minister must have regard to the resources that 23
would have to be used-- 24
(a) in identifying, locating or collating the documents in the 25
filing system of the agency or the Minister's office; or 26
(b) in deciding whether to give, refuse or defer access to the 27
documents, or to give access to edited copies of the 28
documents, including resources that would have to be 29
used-- 30
(i) in examining the documents; or 31
(ii) in consulting with an entity in relation to the 32
application; or 33
(c) in making a copy, or edited copy, of the documents; or 34
s 19 32 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
(d) in notifying any interim or final decision on the 1
application. 2
`(3) In deciding whether to refuse, under subsection (1), to give 3
access to documents, an agency or Minister must not have 4
regard to-- 5
(a) any reasons the applicant gives for applying for access; 6
or 7
(b) the agency's or Minister's belief about what are the 8
applicant's reasons for applying for access. 9
`(4) If-- 10
(a) an application is expressed to relate to all documents, or 11
to all documents of a stated class, that contain 12
information of a stated kind or relate to a stated subject 13
matter; and 14
(b) it appears to the agency or Minister that all of the 15
documents to which the application relates are exempt 16
documents; 17
the agency or Minister may refuse to deal with the application 18
without having identified any or all of the documents. 19
`(5) The notice of the agency's or Minister's decision under 20
subsection (4) to refuse to deal with an application must 21
identify the provision under which the documents are exempt 22
documents. 23
`29A What an agency or Minister must do before refusing 24
to deal with application under s 29 25
`(1) An agency or Minister may refuse to deal with an application 26
under section 29(1) only if-- 27
(a) the agency or Minister has given the applicant a written 28
notice-- 29
(i) stating an intention to refuse to deal with the 30
application; and 31
(ii) advising that, for a consultation period, the 32
applicant may consult with a stated officer of the 33
agency or a stated member of the staff of the 34
s 19 33 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
Minister with a view to making an application in a 1
form that would remove the ground for refusal; and 2
(iii) advising that the consultation period ends 21 days 3
after the day the applicant is given the notice; and 4
(iv) stating the effect of subsections (2), (3), (4), (5), 5
(6) and (7); and 6
(b) the agency or Minister has given the applicant a 7
reasonable opportunity to consult with the officer or 8
member; and 9
(c) the agency or Minister has, as far as is reasonably 10
practicable, provided the applicant with any information 11
that would help the making of an application in a form 12
that would remove the ground for refusal. 13
`(2) During consultation, the applicant and officer or member may 14
agree what is to be the appropriate period for section 27 in 15
relation to the application. 16
`(3) Following consultation, the applicant may give the officer or 17
member written notice either confirming or altering the 18
application. 19
20
Examples of alterations--
21
· an alteration of the documents to which the application relates
22
· an alteration of the application to state that the appropriate period
23
for section 27 in relation to the application is to be a period that has
24
been agreed with the officer or member
`(4) If the application is altered, section 29 applies in relation to 25
the altered application but the other provisions of this section 26
do not apply to it. 27
`(5) If the applicant fails to consult after being given notice under 28
subsection (1)(a), the applicant is taken to have withdrawn the 29
application. 30
`(6) Without limiting subsection (5), the applicant is taken to have 31
failed to consult if, by the end of the consultation period, the 32
applicant has not given the officer or member written notice 33
under subsection (3). 34
`(7) If the applicant gives the officer or member written notice 35
altering the application to state that the appropriate period for 36
s 19 34 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
section 27 is a period agreed under subsection (2), the agreed 1
period is taken to be the appropriate period for section 27. 2
`(8) Also, the period commencing on the day an applicant is given 3
notice under subsection (1)(a) and ending on the day the 4
applicant gives the agency or Minister written notice 5
confirming or altering the application following consultation 6
does not count as part of the appropriate period for section 27. 7
`29B Refusal to deal with application--previous 8
application for same documents 9
`(1) This section applies if an applicant applies to an agency or 10
Minister (the later application) for access to documents that 11
have been the subject of an earlier application made by the 12
same applicant to the same agency or Minister (the earlier 13
application). 14
`(2) However, this section does not apply if the applicant withdrew 15
the earlier application or the application was taken to be 16
withdrawn under section 25A(5), 29A(5) or schedule 4, 17
section 2.26 18
`(3) The agency or Minister may, to the extent the later application 19
relates to documents sought under the earlier application, 20
refuse to deal with the later application on a ground 21
mentioned in subsection (4) if-- 22
(a) the agency or Minister is satisfied the documents sought 23
under the later application are the documents sought 24
under the earlier application; and 25
(b) the later application has not disclosed any reasonable 26
basis for again seeking access to the documents. 27
`(4) The grounds are as follows-- 28
(a) the agency's or Minister's decision on the earlier 29
application-- 30
26 Section 25A (Initial duties of agency or Minister in relation to application),
29A (What an agency or Minister must do before refusing to deal with application
under s 29) or schedule 4 (Process for assessment of charges), section 2 (Deemed
withdrawal of application)
s 19 35 s 19
Freedom of Information and Other Legislation
Amendment Bill 2005
(i) is the subject of a review under part 527 and the 1
review is not complete; or 2
(ii) has been the subject of a completed review under 3
part 5; 4
(b) when the later application was made, the agency or 5
Minister had not decided whether to grant access to the 6
documents under the earlier application; 7
(c) the agency or Minister has decided this Act, or a part of 8
this Act, does not apply to an entity-- 9
(i) because the entity is not an agency for this Act; or 10
(ii) because of section 11 or 1228 or another Act; 11
12
Note--
13
Schedule 3 lists provisions of other Acts that exclude or limit the
14
operation of this Act--see section 11D.
(d) the agency or Minister has decided-- 15
(i) this Act, or a part of this Act, does not apply to the 16
documents because of section 11, 11A, 11B, 11C 17
or 12 or another Act;29 or 18
(ii) access to the documents may be refused under 19
section 22;30 or 20
(iii) the documents sought under the earlier application 21
were exempt from disclosure; 22
23
Note--
24
Schedule 3 lists provisions of other Acts that exclude or limit the
25
operation of this Act--see section 11D.
(e) the agency or Minister has decided the applicant is not 26
entitled to access because of section 11E;31 27
27 Part 5 (External review of decisions)
28 Section 11 (Act not to apply to certain bodies etc.) or 12 (Application of Act to
Information Commissioner)
29 Section 11A (Application of Act to GOCs), 11B (Application of Act to corporatised
corporations) or 11C (Application of Act to coronial documents)
30 Section 22 (Documents to which access may be refused)
31 Section 11E (Application of Act to offenders)
s 20 36 s 21
Freedom of Information and Other Legislation
Amendment Bill 2005
(f) the agency or Minister refused access to the documents 1
under section 28A32 in relation to the earlier 2
application.'. 3
Clause 20 Insertion of new s 31A 4
After section 31-- 5
insert-- 6
`31A Time limit for access 7
`(1) This section applies if a person who applies for access to a 8
document under this Act is granted access to the document. 9
`(2) The person may obtain access to the document-- 10
(a) if providing access is deferred under section 31, 11
within-- 12
(i) 60 days after the person is given notice that access 13
is no longer deferred; and 14
(ii) any additional period allowed by the agency or 15
Minister; or 16
(b) otherwise, within-- 17
(i) 60 days after the person is given notice of the 18
agency's or Minister's decision, or the 19
commissioner's decision, to give the person access 20
to the document; and 21
(ii) any additional period allowed by the agency or 22
Minister. 23
`(3) If the person does not seek to obtain access to the document 24
within the 60 days, or any additional period allowed by the 25
agency or Minister, the person's entitlement to access under 26
the application ends.'. 27
Clause 21 Replacement of s 33 (Persons who are to make decisions 28
for agencies and Ministers) 29
Section 33-- 30
32 Section 28A (Refusal of access--document nonexistent or unlocatable)
s 22 37 s 22
Freedom of Information and Other Legislation
Amendment Bill 2005
omit, insert-- 1
`33 Persons who are to make decisions for agencies 2
and Ministers 3
`(1) An application to an agency is to be dealt with on behalf of the 4
agency by-- 5
(a) if the agency is a department or public authority--the 6
agency's principal officer; or 7
(b) if the agency is a local government-- 8
(i) the agency's principal officer; or 9
(ii) another officer of the agency who the local 10
government, by resolution, nominates. 11
`(2) A nomination under subsection (1)(b)(ii) may be general or 12
limited to a particular application. 13
`(3) An application to a Minister may be dealt with by the person 14
the Minister directs, either generally or in a particular case. 15
`(4) Under subsection (1)(a), an agency's principal officer may 16
delegate the power to deal with the application to-- 17
(a) another officer of the agency; or 18
(b) if the principal officer of a portfolio agency agrees--the 19
principal officer of the portfolio agency. 20
`(5) The principal officer of a portfolio agency may subdelegate a 21
power delegated to him or her under subsection (4)(b). 22
`(6) In this section-- 23
portfolio agency, in relation to an agency, means another 24
department or public authority that is administered by the 25
Minister who administers the agency.'. 26
Clause 22 Amendment of s 34 (Notification of decisions and 27
reasons) 28
Section 34(2)(b) and (c)-- 29
omit, insert-- 30
s 23 38 s 23
Freedom of Information and Other Legislation
Amendment Bill 2005
`(b) if access to a document is to be given, the period within 1
which the person may access the document under 2
section 31A;33 and 3
(c) if access to a document is to be given subject to the 4
deletion of irrelevant matter--that irrelevant matter has 5
been deleted from the document under section 27(3);34 6
and'. 7
Clause 23 Insertion of new pt 3, div 1A 8
After section 35-- 9
insert-- 10
`Division 1A Fees and charges 11
`35A Meaning of financial hardship 12
`(1) An applicant is in financial hardship only if the applicant 13
is-- 14
(a) an individual who holds a concession card; or 15
(b) a non-profit organisation in financial hardship. 16
`(2) Whether a non-profit organisation is in financial hardship 17
depends on-- 18
(a) the nature and size of the organisation's funding base; 19
and 20
21
Example for paragraph (a)--
22
The fact an organisation receives significant government funding
23
may indicate its finances are strictly limited.
(b) the amount of the original charge compared to the 24
organisation's financial position, having regard 25
especially to the organisation's liquid funds. 26
33 Section 31A (Time limit for access)
34 Section 27 (How applications are dealt with)
s 23 39 s 23
Freedom of Information and Other Legislation
Amendment Bill 2005
1
Example for paragraph (b)--
2
A charge of up to $100 would normally not be beyond the means
3
of an organisation unless its financial position was extremely
4
limited.
`(3) In this section-- 5
non-profit organisation means an organisation that is not 6
carried on for the profit or gain of its individual members. 7
8
Examples of entities that may be non-profit organisations--
9
charities, churches, clubs, environment protection societies
`35B Fees and charges for access to documents not 10
concerning personal affairs 11
`(1) This section applies to an applicant applying for access to a 12
document that does not concern the applicant's personal 13
affairs. 14
`(2) The applicant must pay, at the time the application is made, an 15
application fee. 16
`(3) The applicant must pay any processing charge and access 17
charge before the applicant is provided access to the 18
document. 19
`(4) However, a requirement to pay a processing charge applies 20
even if-- 21
(a) access to the document asked for is granted and the 22
applicant does not seek to obtain access to the document 23
within the 60 days, or additional period, mentioned in 24
section 31A;35 or 25
(b) access to the document asked for is refused under this 26
Act. 27
`(5) If the agency or Minister considers it appropriate that the 28
applicant pay a deposit on account of any processing charge 29
or access charge, the applicant must pay any deposit at the 30
time required under schedule 4.36 31
35 Section 31A (Time limit for access)
36 Schedule 4 (Process for assessment of charges)
s 24 40 s 24
Freedom of Information and Other Legislation
Amendment Bill 2005
`(6) The amount of any deposit is the amount provided for under a 1
regulation. 2
`35C Waiver of fees and charges 3
`(1) An application fee may not be waived. 4
`(2) A processing charge or access charge may be waived only as 5
provided under this Act. 6
`(3) A processing charge or access charge must be waived if the 7
agency or Minister considers the applicant is in financial 8
hardship. 9
`(4) A processing charge or access charge may also be waived 10
under section 79(2).37 11
`35D Process for assessment of charges 12
`The process for assessment of charges is stated in 13
schedule 4.38 14
`35E Refund of excess payment 15
`If an applicant pays an agency or Minister an amount for 16
processing charges and access charges that is more than the 17
amount of processing charges and access charges ultimately 18
payable under this Act, the agency or Minister must refund 19
the difference to the applicant.'. 20
Clause 24 Amendment of s 42 (Matter relating to law enforcement or 21
public safety) 22
(1) Section 42(1)-- 23
insert-- 24
`(ca) result in a person being subjected to a serious act of 25
harassment or intimidation; or'. 26
37 Section 79 (Applications where decisions delayed)
38 Schedule 4 (Process for assessment of charges)
s 24 41 s 24
Freedom of Information and Other Legislation
Amendment Bill 2005
(2) Section 42-- 1
insert-- 2
`(3A) Matter is also exempt matter if it consists of information 3
obtained, used or prepared for an investigation by a prescribed 4
crime body, or another agency, in the performance of the 5
prescribed functions of the prescribed crime body. 6
`(3B) Matter is not exempt under subsection (3A) in relation to a 7
particular applicant if-- 8
(a) it consists of information about the applicant; and 9
(b) the investigation has been finalised. 10
`(3C) A reference in this section to a repealed Act includes a 11
reference to the repealed Act as originally enacted and as in 12
force from time to time.'. 13
(3) Section 42(5)-- 14
insert-- 15
`prescribed crime body means-- 16
(a) the Crime and Misconduct Commission; or 17
(b) the former Criminal Justice Commission; or 18
(c) the former Queensland Crime Commission. 19
prescribed functions means-- 20
(a) in relation to the Crime and Misconduct 21
Commission--the crime function, and the misconduct 22
functions, within the meaning of the Crime and 23
Misconduct Act 2001; and 24
(b) in relation to the former Criminal Justice 25
Commission--the functions of the former Criminal 26
Justice Commission under the repealed Criminal Justice 27
Act 1989 in relation to organised or major crime or in 28
relation to misconduct or official misconduct within the 29
meaning of that Act; and 30
(c) in relation to the former Queensland Crime 31
Commission--the functions of the former Queensland 32
Crime Commission under the repealed Crime 33
s 25 42 s 25
Freedom of Information and Other Legislation
Amendment Bill 2005
Commission Act 1997 in relation to relevant criminal 1
activity or major crime within the meaning of that Act.'. 2
Clause 25 Amendment of s 44 (Matter affecting personal affairs) 3
(1) Section 44(1), after `public interest.'-- 4
insert-- 5
6
`Note--
7
See also section 50A (Applications on behalf of children and matters
8
affecting personal affairs of children).'.
(2) Section 44(3)(a), `information of a medical or psychiatric 9
nature concerning the person making the application'-- 10
omit, insert-- 11
`health care information concerning the applicant'. 12
(3) Section 44(3), `a medical practitioner'-- 13
omit, insert-- 14
`an appropriately qualified health care professional'. 15
(4) Section 44(4)-- 16
omit, insert-- 17
`(4) The principal officer or Minister may appoint an appropriately 18
qualified health care professional to make a decision under 19
subsection (3) on behalf of the principal officer or Minister. 20
`(5) A health care professional nominated and approved under 21
subsection (3) may decide-- 22
(a) whether or not to disclose all or part of the information 23
contained in the document to the applicant; and 24
(b) the way in which to disclose the information to the 25
applicant. 26
`(6) In this section-- 27
appropriately qualified means having the qualifications and 28
experience appropriate to assess the health care information in 29
the document. 30
s 26 43 s 27
Freedom of Information and Other Legislation
Amendment Bill 2005
health care information means information provided by a 1
health care professional. 2
health care professional means a person who carries on, and 3
is entitled to carry on, an occupation involving the provision 4
of care for a person's physical or mental health or wellbeing, 5
including, for example-- 6
(a) a doctor, including a psychiatrist; or 7
(b) a psychologist; or 8
(c) a social worker; or 9
(d) a registered nurse.'. 10
Clause 26 Amendment of s 45 (Matter relating to trade secrets, 11
business affairs and research) 12
(1) Section 45(3)(a)-- 13
omit, insert-- 14
`(a) it would disclose the purpose or results of research, 15
whether or not the research is yet to be started, the 16
research has started but is unfinished, or the research is 17
finished; and'. 18
(2) Section 45(3)(b), after `whose behalf the research'-- 19
insert-- 20
`was,'. 21
(3) Section 45(4), after `it concerns research that'-- 22
insert-- 23
`was,'. 24
Clause 27 Amendment of s 46 (Matter communicated in confidence) 25
Section 46(2), from `its disclosure would' to `confidence 26
owed to'-- 27
omit, insert-- 28
`it consists of information communicated by'. 29
s 28 44 s 28
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 28 Insertion of new pt 3, div 2A 1
After section 50-- 2
insert-- 3
`Division 2A Children 4
`50A Applications on behalf of children and matters 5
affecting personal affairs of children 6
`(1) Without limiting the ability of persons to make applications 7
on behalf of children, an application may be made under 8
section 2539 on behalf of a child by a parent or a person having 9
guardianship of the child. 10
`(2) If an application made under section 25 states that it is made 11
on behalf of a child by a parent or another person having 12
guardianship of the child-- 13
(a) the application must state the name of the child and the 14
name of the parent or other person; and 15
(b) the child is the applicant for the purposes of 16
division 1A;40 and 17
(c) section 10541 does not apply in relation to the 18
application but, if the application is for documents that 19
relate to the personal affairs of the child and that contain 20
matter that would be exempt matter if the application 21
were made by a person (other than the child or the 22
child's agent), an agency or Minister-- 23
(i) must not give access to the information unless the 24
agency or the Minister is satisfied of the identity of 25
the child and the parent or other person; and 26
(ii) must ensure, by the adoption of appropriate 27
procedures, that any information intended for the 28
child is received only by the parent or other person. 29
39 Section 25 (How applications for access are made)
40 Division 1A (Fees and charges)
41 Section 105 (Precautions)
s 28 45 s 28
Freedom of Information and Other Legislation
Amendment Bill 2005
`(3) If an application is made under section 25 by, or on behalf of a 1
child, then, despite section 44(2),42 if a document contains 2
information concerning the personal affairs of the child, the 3
agency or Minister may refuse access to all or part of the 4
information if the agency or Minister considers access would 5
not be in the best interests of the child. 6
`(4) If an application is made under section 25 by a child, the 7
agency or Minister, in deciding whether to give the child 8
access to all or part of the information, must consider whether 9
the child has the capacity to-- 10
(a) understand the information and the context in which it 11
was recorded; and 12
(b) make a mature judgment as to what might be in his or 13
her best interests. 14
`(5) In this section-- 15
child means an individual who is under 18. 16
guardianship includes guardianship, whether sole 17
guardianship or otherwise and whether for a particular 18
purpose or otherwise, under a law of the Commonwealth or of 19
a State or Territory. 20
parent see the Child Protection Act 1999, section 11(1) to (4). 21
22
Note--
23
Child Protection Act 1999, section 11(1) to (4)--
24
11 Who is a parent
25
(1) A parent of a child is the child's mother, father or
26
someone else (other than the chief executive) having or
27
exercising parental responsibility for the child.
28
(2) However, a person standing in the place of a parent of a
29
child on a temporary basis is not a parent of the child.
30
(3) A parent of an Aboriginal child includes a person who,
31
under Aboriginal tradition, is regarded as a parent of the
32
child.
42 Section 44 (Matter affecting personal affairs)
s 29 46 s 29
Freedom of Information and Other Legislation
Amendment Bill 2005
1
(4) A parent of a Torres Strait Islander child includes a
2
person who, under Island custom, is regarded as a parent
3
of the child.'.
Clause 29 Amendment of s 51 (Disclosure that may reasonably be 4
expected to be of substantial concern) 5
(1) Section 51(2)(e)-- 6
omit, insert-- 7
`(e) defer giving access to the document until after-- 8
(i) the agency or Minister is given written notice by 9
the government, agency or person concerned that 10
the government, agency or person concerned does 11
not intend to make any application for review 12
under this Act; or 13
(ii) if notice is not given under subparagraph (i) and no 14
application for review under this Act is made by 15
the end of the review period--the end of the review 16
period; or 17
(iii) if an application for review is made by the end of 18
the review period--the application is finally 19
disposed of.'. 20
(2) Section 51(3)-- 21
omit, insert-- 22
`(3) In this section-- 23
adult child means a child who is 18 or more. 24
adult sibling means a sibling who is 18 or more. 25
eligible family member, of a deceased person, means-- 26
(a) a spouse of the deceased person; or 27
(b) if a spouse is not reasonably available--an adult child of 28
the deceased person; or 29
(c) if a spouse or adult child is not reasonably available--a 30
parent of the deceased person; or 31
(d) if a spouse, adult child or parent is not reasonably 32
available--an adult sibling of the deceased person; or 33
s 30 47 s 30
Freedom of Information and Other Legislation
Amendment Bill 2005
(e) if a spouse, adult child, parent or adult sibling is not 1
reasonably available and the deceased person was not an 2
Aboriginal person or Torres Strait Islander--the next 3
nearest adult relative of the deceased person who is 4
reasonably available; or 5
(f) if a spouse, adult child, parent or adult sibling is not 6
reasonably available and the deceased person was an 7
Aboriginal person or Torres Strait Islander--a person 8
who is an appropriate person according to the tradition 9
or custom of the Aboriginal or Torres Strait Islander 10
community to which the deceased person belonged and 11
who is reasonably available. 12
person concerned, in relation to a person who has died, 13
means the deceased person's eligible family member, or, if 14
2 or more persons qualify as the deceased person's eligible 15
family member, 1 of those persons. 16
review period means the period within which any application 17
for review under this Act may be made. 18
`(4) For the definition eligible family member, a person described 19
in the definition is not reasonably available if-- 20
(a) a person of that description does not exist; or 21
(b) a person of that description can not be reasonably 22
contacted; or 23
(c) a person of that description is unable or unwilling to act 24
as the person concerned for this section.'. 25
Clause 30 Replacement of s 52 (Internal review) 26
Section 52-- 27
omit, insert-- 28
`52 Internal review 29
`(1) A person who is aggrieved by any of the following decisions 30
is entitled to a review of the decision-- 31
(a) a decision under this part; 32
(b) a decision that this Act, or a part of this Act, does not 33
apply to an entity-- 34
s 30 48 s 30
Freedom of Information and Other Legislation
Amendment Bill 2005
(i) because the entity is not an agency for this Act; or 1
(ii) because of section 11 or 12 or another Act;
43
2
(c) a decision that this Act, or a part of this Act, does not 3
apply to a document because of section 11, 11A, 11B, 4
11C or 1244 or another Act; 5
6
Note--
7
Schedule 3 lists provisions of other Acts that exclude or limit the
8
operation of this Act--see section 11D.
(d) a decision of the agency or Minister that the applicant is 9
not entitled to access because of section 11E.45 10
`(2) An application for review of a decision must-- 11
(a) be in writing; and 12
(b) state an address to which notices under this Act may be 13
sent to the applicant; and 14
(c) be lodged at an office of the agency or the Minister 15
within 28 days after the day on which written notice of 16
the decision was given to the applicant or within the 17
further time the agency's principal officer or the 18
Minister allows (whether before or after the end of the 19
28 day period). 20
`(3) A person is not entitled to a review under this section of a 21
decision made-- 22
(a) on an application made under this section; or 23
(b) by an agency's principal officer; or 24
(c) by a Minister. 25
`(4) An application under this section must not be dealt with by-- 26
(a) the person who dealt with the original application; or 27
(b) a person who is less senior than that person. 28
43 Section 11 (Act not to apply to certain bodies etc.) or 12 (Application of Act to
Information Commissioner)
44 Section 11A (Application of Act to GOCs), 11B (Application of Act to corporatised
corporations) or 11C (Application of Act to coronial documents)
45 Section 11E (Application of Act to offenders)
s 30 49 s 30
Freedom of Information and Other Legislation
Amendment Bill 2005
`(5) The reviewer must decide the application as if it were a fresh 1
application under section 25. 2
`(6) If an agency or Minister does not decide an application and 3
notify the applicant of the decision within 28 days after 4
receiving it, the agency's principal officer or the Minister is 5
taken to have made a decision at the end of the period 6
affirming the original decision. 7
`(7) A person is aggrieved by a decision only if section 52A(1), (3) 8
or (4) applies. 9
`52A Who is aggrieved by a decision for s 52 10
`(1) For section 52, a person is aggrieved by a decision if the 11
decision relates to an application made by the person under 12
section 25 and is to the effect that-- 13
(a) the agency or Minister refuses, under section 29 or 14
29B,46 to deal with the application; or 15
(b) the agency or Minister refuses to give the applicant 16
access to a document; or 17
(c) access to a document is to be given to the applicant 18
subject to deferral; or 19
(d) access to a document is to be given to the applicant 20
subject to the deletion of exempt matter or matter an 21
agency or Minister considers is irrelevant matter; or 22
(e) an application fee is payable; or 23
(f) a processing charge or access charge is payable under a 24
final assessment notice and-- 25
(i) the applicant considers the charge is wrongly 26
assessed; or 27
(ii) the applicant considers the processing charge and 28
access charge should be waived because the 29
applicant is in financial hardship and, if the agency 30
is not a department, the applicant gave the agency 31
46 Section 29 (Refusal to deal with application--agency's or Minister's functions) or
29B (Refusal to deal with application--previous application for same documents)
s 30 50 s 30
Freedom of Information and Other Legislation
Amendment Bill 2005
an objection notice in which the applicant 1
contended that charges should be waived because 2
the applicant is in financial hardship; or 3
4
Note--
5
For challenges to a processing charge or access charge
6
payable under a preliminary assessment notice, see
7
schedule 4 (Process for assessment of charges), part 2
8
(Objection process).
(g) a contention in an objection notice is rejected. 9
`(2) For subsection (1)(f), it does not matter whether the 10
processing charge or access charge has already been paid. 11
`(3) For section 52, a person, including a government or agency, is 12
aggrieved by a decision if the decision relates to an 13
application by another person under section 25 for access to a 14
document and-- 15
(a) the agency or Minister should have taken, but has not 16
taken, the steps that are reasonably practicable to obtain 17
the views of the aggrieved person about whether or not 18
the document contained matter that is exempt matter; or 19
(b) the agency or Minister has obtained the views of the 20
aggrieved person but the decision is not in accordance 21
with the views. 22
`(4) For section 52, a person is aggrieved by a decision if-- 23
(a) the decision relates to an application by another person 24
under section 25 for access to a document; and 25
(b) 2 or more persons, including the aggrieved person, 26
qualify as a deceased person's eligible family member 27
as defined under section 51;47 and 28
(c) the agency or Minister obtained the views of 1 of the 29
persons and that person was of the view that the matter 30
contained in the document was not exempt matter; and 31
(d) the agency or Minister did not obtain the views of the 32
aggrieved person and the aggrieved person is of the view 33
47 Section 51 (Disclosure that may reasonably be expected to be of substantial
concern)
s 31 51 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
that the matter contained in the document is exempt 1
matter.'. 2
Clause 31 Replacement of ss 53 and 54 3
Sections 53 and 54-- 4
omit, insert-- 5
`53 Person may apply for amendment of information 6
`(1) A person who has had access to a document from an agency 7
or Minister (whether or not under this Act) containing 8
information relating to the person's personal affairs is entitled 9
to apply to the agency or Minister for amendment of any part 10
of the information that the person claims is inaccurate, 11
incomplete, out-of-date or misleading. 12
`(2) A person who-- 13
(a) has had access to a document from an agency or 14
Minister (whether or not under this Act) containing 15
information relating to the personal affairs of a deceased 16
person; and 17
(b) is either-- 18
(i) a person who qualifies as a deceased person's 19
eligible family member as defined under 20
section 51; or 21
(ii) a person the agency or Minister considers has an 22
appropriate interest in the amendment of the 23
information relating to the personal affairs of the 24
deceased person; 25
is entitled to apply to the agency or Minister for amendment 26
of any part of the information that the person claims is 27
inaccurate, incomplete, out-of-date or misleading. 28
`54 Form of application for amendment of information 29
An application under section 53 must-- 30
(a) be in writing; and 31
s 31 52 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) state an address to which a notice under section 5748 1
may be sent to the applicant; and 2
(c) state the information the applicant claims is inaccurate, 3
incomplete, out-of-date or misleading and the document 4
containing the information; and 5
(d) state the way in which the applicant claims the 6
information to be inaccurate, incomplete, out-of-date or 7
misleading and the grounds for the applicant's claim; 8
and 9
(e) if the applicant claims the information to be inaccurate 10
or misleading--state the amendments the applicant 11
claims are necessary for the information to be accurate 12
or not misleading; and 13
(f) if the applicant claims the information to be incomplete 14
or out-of-date--state the other information the applicant 15
claims is necessary to complete the information or to 16
bring it up-to-date. 17
`54A Transfer of applications 18
`(1) An agency to which an application under section 53 has 49
19
been made (the original agency) may transfer the application 20
to another agency if-- 21
(a) the document to which the application relates is held by 22
the original agency but is more closely related to the 23
functions of the other agency; and 24
(b) the other agency consents to the transfer. 25
`(2) If the application is transferred, the original agency must-- 26
(a) give a copy of the document (whether or not in the form 27
of a written document) to the other agency with the 28
application; and 29
48 Section 57 (Time within which agency or Minister must notify applicant)
49 Section 53 (Person may apply for amendment of information)
s 31 53 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) immediately give the applicant written notice of the 1
transfer, stating in the notice the day on which, and the 2
agency to which, the application has been transferred. 3
`(3) If the application is transferred, the application is taken-- 4
(a) to be an application under section 53 made to the other 5
agency; and 6
(b) to have been received by the other agency-- 7
(i) on the day on which it is transferred; or 8
(ii) 14 days after the day on which it was received by 9
the original agency; 10
whichever is the earlier. 11
`(4) If the other agency decides to amend the information to which 12
the application relates, then-- 13
(a) the other agency must advise the original agency of the 14
decision and how, under section 55,50 it proposes to 15
make the amendment; and 16
(b) the original agency must make the same amendment to 17
the information in the document it holds. 18
`(5) If an application is made to an agency for amendment of 19
information in more than 1 document, this section applies in 20
relation to each of the documents as if separate applications 21
had been made to the agency for amendment of information in 22
each of the documents. 23
`(6) In this section-- 24
agency includes a Minister. 25
`54B Refusal to deal with application--agency's or 26
Minister's functions 27
`(1) An agency or Minister to whom an application is made under 28
section 53 may refuse to deal with the application or, if the 29
agency or Minister is considering 2 or more applications made 30
by the same person, all the applications, if the agency or 31
50 Section 55 (Amendment of information by alteration or notation)
s 31 54 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
Minister considers the work involved in dealing with the 1
application or all the applications, would, if carried out-- 2
(a) substantially and unreasonably divert the resources of 3
the agency from their use by the agency in the 4
performance of its functions; or 5
(b) interfere substantially and unreasonably with the 6
performance by the Minister of the Minister's functions. 7
`(2) If the agency or Minister decides to refuse to deal with the 8
application or all the applications-- 9
(a) the agency or Minister must give written notice to the 10
applicant of the decision and the reasons for the 11
decision; and 12
(b) the notice must specify-- 13
(i) the day on which the decision was made; and 14
(ii) details of any public interest considerations on 15
which the decision was based; and 16
(iii) the name and designation of the officer who made 17
the decision; and 18
(c) section 5951 does not apply in relation to the information 19
the subject of the application. 20
`54C What an agency or Minister must do before refusing 21
to deal with application under s 54B 22
`(1) The agency or Minister may refuse to deal with the 23
application, or all the applications, under section 54B only 24
if-- 25
(a) the agency or Minister has given the applicant a written 26
notice-- 27
(i) stating an intention to refuse to deal with the 28
application or all the applications; and 29
(ii) advising that, for a consultation period, the 30
applicant may consult with a stated officer of the 31
51 Section 59 (Particular notations required to be added)
s 31 55 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
agency or a stated member of the staff of the 1
Minister with a view to making an application or 2
applications in a form that would remove the 3
ground for refusal; and 4
(iii) advising that the consultation period ends 21 days 5
after the day the applicant is given the notice; and 6
(iv) stating the effect of subsections (2), (3), (4), (5), 7
(6) and (7); and 8
(b) the agency or Minister has given the applicant a 9
reasonable opportunity to consult with the officer or 10
member; and 11
(c) the agency or Minister has, as far as is reasonably 12
practicable, provided the applicant with any information 13
that would help the making of an application or 14
applications in a form that would remove the ground for 15
refusal. 16
`(2) During consultation, the applicant and officer or member may 17
agree on a different period to the period mentioned in 18
section 5752 for notification of the decision in relation to the 19
application or any of the applications. 20
`(3) Following consultation, the applicant may give the officer or 21
member written notice either confirming or altering the 22
application or any of the applications. 23
24
Examples of alterations--
25
· an alteration of the documents to which the application relates
26
· an alteration of the application to state that the period for
27
notification of the decision in relation to the application is to be the
28
period agreed with the officer or member rather than the period
29
mentioned in section 57
`(4) If the application is altered, section 54B applies in relation to 30
the altered application but the other provisions of this section 31
do not apply to it. 32
`(5) If the applicant fails to consult after being given notice under 33
subsection (1)(a), the applicant is taken to have withdrawn the 34
application or all of the applications. 35
52 Section 57 (Time within which agency or Minister must notify applicant)
s 31 56 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
`(6) Without limiting subsection (5), the applicant is taken to have 1
failed to consult if, by the end of the consultation period, the 2
applicant has not given the officer or member written notice 3
under subsection (3). 4
`(7) If the applicant gives the officer or member written notice 5
altering the application to state that the period for notification 6
of the decision in relation to the application is to be the 7
different period agreed under subsection (2), the agreed period 8
is taken to be the period mentioned in section 57. 9
`(8) Also, the period commencing on the day an applicant is given 10
notice under subsection (1)(a) and ending on the day the 11
applicant gives the agency or Minister written notice 12
confirming or altering the application following consultation 13
does not count as part of the period mentioned in section 57. 14
`54D Refusal to deal with application--previous 15
application for same amendment 16
`(1) This section applies if an applicant applies to an agency or 17
Minister for amendment under section 53 of information in 18
1 or more documents (the later application) and has made an 19
earlier application to the same agency or Minister for the same 20
or a similar amendment under section 53 of information in 21
1 or more of the same documents (the earlier application). 22
`(2) However, this section does not apply if the applicant withdrew 23
the earlier application or the application was taken to be 24
withdrawn under section 54C.53 25
`(3) The agency or Minister may, to the extent the later application 26
relates to the amendment of a document or documents sought 27
under the earlier application, refuse to deal with the later 28
application on a ground mentioned in subsection (4) if-- 29
(a) the agency or Minister is satisfied the amendment 30
sought under the later application was the same or 31
similar amendment sought under the earlier application; 32
and 33
53 Section 54C (What an agency or Minister must do before refusing to deal with
application under s 54B)
s 31 57 s 31
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) the later application has not disclosed any reasonable 1
basis for again seeking amendment of information in the 2
document or documents. 3
`(4) The grounds are as follows-- 4
(a) the agency's or Minister's decision on the earlier 5
application was to refuse to amend on a ground 6
mentioned in section 54E(2); 7
(b) when the later application was made, the agency or 8
Minister had not decided whether to amend the 9
information to which the earlier application relates; 10
(c) the agency's or Minister's decision on the earlier 11
application-- 12
(i) is the subject of a review under division 254 and the 13
review is not complete; or 14
(ii) has been the subject of a completed review under 15
division 2. 16
`54E Discretion to amend information 17
`(1) An agency or Minister to whom an application is made under 18
section 53 may decide to amend the information to which the 19
application relates. 20
`(2) Without limiting the grounds on which the agency or Minister 21
may refuse to amend the information, the agency or Minister 22
may refuse to amend the information because-- 23
(a) the agency or Minister is not satisfied-- 24
(i) the information is inaccurate, incomplete, 25
out-of-date or misleading; or 26
(ii) the information sought to be amended is 27
information relating to the personal affairs of the 28
applicant or relating to the personal affairs of a 29
deceased person; or 30
54 Division 2 (Internal review)
s 32 58 s 33
Freedom of Information and Other Legislation
Amendment Bill 2005
(iii) if the information sought to be amended is 1
information relating to the personal affairs of a 2
deceased person, that the applicant is a person 3
entitled to apply for amendment under 4
section 53(2)(b); or 5
(b) the information is not recorded in a functional record. 6
`(3) In this section-- 7
functional record, of an agency or Minister, means a record 8
available for use in the day to day or ordinary performance of 9
the agency's or Minister's functions.'. 10
Clause 32 Amendment of s 55 (Agency or Minister may amend 11
information) 12
Section 55, heading-- 13
omit, insert-- 14
`55 Amendment of information by alteration or notation'. 15
Clause 33 Amendment of s 57 (Time within which agency or 16
Minister must notify applicant) 17
Section 57-- 18
insert-- 19
20
`Note--
21
The period of 30 days mentioned in subsection (1) may be affected by
22
section 54C(7).
`(2) If-- 23
(a) the period of 30 days mentioned in subsection (1) has 24
ended; and 25
(b) the applicant has not received notice of a decision; 26
the agency's principal officer or the Minister is taken to have 27
made, on the last day of the period, a decision refusing to 28
amend the information.'. 29
s 34 59 s 34
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 34 Replacement of s 59 (Certain notations required to be 1
added) 2
Section 59-- 3
omit, insert-- 4
`59 Particular notations required to be added 5
`(1) This section applies if-- 6
(a) a person applies to an agency or Minister under 7
section 53 to amend information; and 8
(b) the agency or Minister has refused to amend the 9
information under section 54E;55 and 10
(c) the agency or Minister has not added a notation to the 11
information under section 56. 12
`(2) The applicant may, whether or not the applicant has applied to 13
the commissioner for review of the decision, by written 14
notice, require the agency or Minister to add to the 15
information a notation-- 16
(a) stating the way in which the applicant claims the 17
information to be inaccurate, incomplete, out-of-date or 18
misleading; and 19
(b) if the applicant claims the information to be inaccurate 20
or misleading--setting out the amendments the 21
applicant claims are necessary for the information to be 22
accurate or not misleading; and 23
(c) if the applicant claims the information to be incomplete 24
or out-of-date--setting out the information the applicant 25
claims is necessary to complete the information or to 26
bring it up-to-date. 27
`(3) The agency or Minister must-- 28
(a) comply with the requirements of a notice under this 29
section; and 30
(b) give the applicant written notice of the nature of the 31
notation; and 32
55 54E (Discretion to amend information)
s 35 60 s 35
Freedom of Information and Other Legislation
Amendment Bill 2005
(c) if the application made under section 53 was transferred 1
to the agency under section 54A, advise the agency to 2
which the application was originally made (the original 3
agency) of the notation. 4
`(4) Subsection (3)(a) does not require the agency or Minister to 5
make a notation in the words provided by the applicant. 6
`(5) If the original agency is advised of a notation under 7
subsection (3)(c), the original agency must make the same 8
notation to the information in the document it holds. 9
`(6) If the agency or Minister decides the information to which the 10
notice relates does not relate to information about which the 11
applicant was entitled to apply to the agency under 12
section 53-- 13
(a) subsections (2) and (3) do not apply; and 14
(b) the agency or Minister must give written notice to the 15
applicant of the decision and the reasons for the 16
decision; and 17
(c) section 34(2)(a), (g) and (h) applies to the notice. 18
`(7) If an agency or Minister (the document holder) discloses to a 19
person (including an agency or Minister) any information 20
contained in the part of its documents to which a notice under 21
this section relates, the document holder-- 22
(a) must ensure the person is given, when the information is 23
disclosed, a statement-- 24
(i) stating that the person, or eligible family member 25
of the person, to whom the information relates 26
claims that the information is inaccurate, 27
incomplete, out-of-date or misleading; and 28
(ii) setting out particulars of the notation added under 29
this section; and 30
(b) may include in the statement the reason for the agency's 31
refusal to amend the information.'. 32
Clause 35 Replacement of s 60 (Internal review) 33
Section 60-- 34
s 35 61 s 35
Freedom of Information and Other Legislation
Amendment Bill 2005
omit, insert-- 1
`60 Internal review 2
`(1) A person who is aggrieved by a decision under this part is 3
entitled to a review of the decision. 4
`(2) An application for review of a decision must-- 5
(a) be in writing; and 6
(b) state an address to which notices under this Act may be 7
sent to the applicant; and 8
(c) be lodged at an office of the agency or Minister within 9
28 days after the day on which written notice of the 10
decision was given to the applicant or within the further 11
time the agency's principal officer or the Minister allows 12
(whether before or after the end of that period). 13
`(3) A person is not entitled to a review under this section of a 14
decision made-- 15
(a) on an application made under this section; or 16
(b) by an agency's principal officer; or 17
(c) by a Minister. 18
`(4) An application under this section must not be dealt with by-- 19
(a) the person who dealt with the original application; or 20
(b) a person who is less senior than that person. 21
`(5) The reviewer must decide the application as if it were a fresh 22
application under section 53. 23
`(6) If an agency, Minister or delegate of the Minister does not 24
decide an application and notify the applicant of the decision 25
within 28 days after receiving it, the agency's principal officer 26
or the Minister is taken to have made a decision at the end of 27
the period affirming the original decision. 28
`(7) A person is aggrieved by a decision only if-- 29
(a) the decision relates to an application made by a person 30
under section 53 and is to the effect that the agency or a 31
delegate of the Minister refuses to deal with the 32
application or refuses to amend information under the 33
application; or 34
s 36 62 s 39
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) the decision relates to a notice given by a person under 1
section 59 and is to the effect that the agency or a 2
delegate of the Minister considers the information to 3
which the notice relates is not information about which 4
the person was entitled to apply to the agency or 5
Minister under section 53.'. 6
Clause 36 Omission of pt 5, divs 13 7
(1) Part 5, divisions 1, 2 and 2A-- 8
omit. 9
(2) Part 5, division 3-- 10
omit. 11
Clause 37 Renumbering of pt 5, divs 4 and 5 12
Part 5, divisions 4 and 5-- 13
renumber as part 5, divisions 1 and 2. 14
Clause 38 Amendment of s 73 (Applications for review) 15
(1) Section 73(1)(d)-- 16
omit, insert-- 17
`(d) be made within 28 days from the day on which written 18
notice of the decision is given to the applicant, or within 19
the longer period the commissioner allows.'. 20
(2) Section 73(3)(b), `14 days'-- 21
omit, insert-- 22
`28 days'. 23
Clause 39 Replacement of s 74 (Commissioner to notify) 24
Section 74-- 25
omit, insert-- 26
s 40 63 s 40
Freedom of Information and Other Legislation
Amendment Bill 2005
`74 Commissioner to notify agency or Minister 1
`Before starting a review of a decision, the commissioner 2
must inform the agency or Minister concerned that the 3
decision is to be reviewed.'. 4
Clause 40 Replacement of ss 76 and 77 5
Sections 76 and 77-- 6
omit, insert-- 7
`76 Inspection by commissioner of documents from 8
agency or Minister 9
`(1) The commissioner may require an agency or Minister to 10
produce a document for inspection for the purpose of enabling 11
the commissioner to decide-- 12
(a) whether the document is a document of the agency or an 13
official document of the Minister; or 14
(b) whether the document falls within the terms of an 15
application for access made under section 25; or 16
(c) whether the document is excluded from the application 17
of the Act under section 11, 11A, 11B, 11C or 1256 or 18
another Act; or 19
20
Note--
21
Schedule 3 lists provisions of other Acts that exclude or limit the
22
operation of this Act--see section 11D.
(d) whether the document is a document mentioned in 23
section 11E;57 or 24
(e) whether the document is a document to which access 25
may be refused under section 22;58 or 26
(f) whether the document is an exempt document or 27
contains or comprises exempt matter; or 28
56 Section 11 (Act not to apply to certain bodies etc.), 11A (Application of Act to
GOCs), 11B (Application of Act to corporatised corporations), 11C (Application of
Act to coronial documents) or 12 (Application of Act to Information Commissioner)
57 Section 11E (Application of Act to offenders)
58 Section 22 (Documents to which access may be refused)
s 40 64 s 40
Freedom of Information and Other Legislation
Amendment Bill 2005
(g) whether, for the purposes of section 29B,59 the later 1
application for access to the document has disclosed any 2
reasonable basis for again seeking access to the 3
document; or 4
(h) whether an application fee, processing charge or access 5
charge is payable in relation to access to the document. 6
`(2) The commissioner must do all things necessary to ensure a 7
document produced under subsection (1)-- 8
(a) is not disclosed to a person other than-- 9
(i) a member of the staff of the commissioner in the 10
course of performing duties as a member of the 11
staff; or 12
(ii) a person who created the document or who 13
provided the document or information in the 14
document to the agency or Minister; or 15
(iii) if a person mentioned in subparagraph (ii) is a 16
participant in the review--the participant's 17
representative; and 18
(b) is returned to the agency or Minister at the end of the 19
review. 20
`77 Commissioner may decide not to review 21
`(1) The commissioner may decide not to deal with, or not to 22
further deal with, all or part of an application for review if-- 23
(a) the commissioner is satisfied the application, or the part 24
of the application, is frivolous, vexatious, misconceived 25
or lacking substance; or 26
(b) the applicant for review fails to comply with a direction 27
given by the commissioner; or 28
(c) the commissioner considers the applicant for review has 29
failed to cooperate in progressing the application, or the 30
part of the application, without reasonable excuse; or 31
59 Section 29B (Refusal to deal with application--previous application for same
documents)
s 41 65 s 41
Freedom of Information and Other Legislation
Amendment Bill 2005
(d) the commissioner considers the address the applicant for 1
review stated in the application is no longer an address 2
at which the applicant is contactable and the applicant 3
has not, within a reasonable time, advised the 4
commissioner of a new address of the applicant to which 5
notices may be sent under this Act. 6
`(2) If the commissioner decides not to deal with, or not to further 7
deal with, all or part of an application for review, the 8
commissioner must, as soon as practicable, inform each of the 9
following persons in writing of the decision and of the reasons 10
for the decision-- 11
(a) the applicant for review, unless subsection (1)(d) 12
applies; 13
(b) any other person informed by the commissioner of the 14
proposed review.'. 15
Clause 41 Replacement of s 79 (Applications where decisions 16
delayed) 17
Section 79-- 18
omit, insert-- 19
`79 Applications where decisions delayed 20
`(1) This section applies if an agency's principal officer or a 21
Minister is taken to have made a decision (the original 22
decision) under section 20(4), 27(5) or 57(2), schedule 4, 23
section 7 or schedule 4, section 9(3)60 in relation to an 24
application, or a notice served under section 20(1) (the 25
original application). 26
`(2) If an application is made to the commissioner for review of 27
the original decision, the commissioner may-- 28
(a) on the application of the agency or Minister concerned, 29
allow further time to the agency or Minister to deal with 30
the original application; and 31
60 Section 20 (Notices to require specification of documents in statements), section 27
(How applications are dealt with), section 57 (Time within which agency or Minister
must notify applicant), schedule 4 (Process for assessment of charges), section 7
(Deemed decision) or section 9(3) (Concession card given but not accepted)
s 42 66 s 42
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) make the decision to allow further time subject to the 1
conditions the commissioner considers appropriate, 2
including a condition that any processing charge that 3
was required to be paid must be reduced or waived. 4
`(3) If the agency or Minister does not deal with the original 5
application and notify the applicant within the further time, 6
the agency's principal officer or the Minister is taken, for the 7
purpose of enabling an application to be made to the 8
commissioner under section 73, to have made, on the last day 9
of the further time, a decision affirming the original decision.'. 10
Clause 42 Replacement of s 81 (Onus to lie with agencies and 11
Ministers) 12
Section 81-- 13
omit, insert-- 14
`81 Onus 15
`(1) On a review by the commissioner, the agency which or 16
Minister who made the decision under review has the onus of 17
establishing that the decision was justified or that the 18
commissioner should give a decision adverse to the applicant. 19
`(2) However, if the decision under review is a disclosure decision, 20
the participant in the application for review who opposes the 21
disclosure decision has the onus of establishing that a decision 22
not to disclose the document or matter is justified or that the 23
commissioner should give a decision adverse to the person 24
who wishes to obtain access to the document. 25
`(3) In this section-- 26
disclosure decision means-- 27
(a) a decision to disclose a document or matter contrary to 28
the views of a person obtained under section 51;61 or 29
(b) a decision to disclose a document or matter if the agency 30
or Minister should have taken, but has not taken, steps to 31
obtain the views of a person under section 51.'. 32
61 Section 51 (Disclosure that may reasonably be expected to be of substantial
concern)
s 43 67 s 44
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 43 Amendment of s 83 (Conduct of reviews) 1
Section 83(5)(a), `under section 74(2)'-- 2
omit. 3
Clause 44 Replacement of ss 87 and 88 4
Sections 87 and 88-- 5
omit, insert-- 6
`86A False or misleading information 7
`(1) A person must not give information to the commissioner, or a 8
member of the commissioner's staff, that the person knows is 9
false or misleading in a material particular. 10
Maximum penalty--100 penalty units. 11
`(2) Subsection (1) does not apply to information given in a 12
document, if the person when giving the document-- 13
(a) informs the commissioner or member of the 14
commissioner's staff, to the best of the person's ability, 15
how the information is false or misleading; and 16
(b) gives the correct information to the commissioner or 17
member of the commissioner's staff if the person has, or 18
can reasonably obtain, the correct information. 19
`(3) It is enough for a complaint against a person for an offence 20
against subsection (1) to state that the information was `false 21
or misleading', without specifying whether it was false or 22
whether it was misleading. 23
`87 Commissioner to ensure non-disclosure of 24
particular matter 25
`(1) On a review, the commissioner may give the directions the 26
commissioner considers necessary to avoid the disclosure to 27
an access participant or an access participant's representative 28
of-- 29
(a) matter that is claimed to be exempt matter; or 30
(b) information that is claimed to be information of the kind 31
mentioned in section 35. 32
s 44 68 s 44
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) The commissioner may receive evidence, or hear argument, in 1
the absence of an access participant or an access participant's 2
representative if it is necessary to do so to prevent disclosure 3
to that person of matter or information of that kind. 4
`(3) The commissioner must not, in a decision on a review or in 5
reasons for a decision on review, include matter or 6
information of a kind mentioned in subsection (1). 7
`(4) In this section-- 8
access participant means a participant other than-- 9
(a) the agency or Minister who made the decision under 10
review; or 11
(b) a participant who created the document concerned or 12
who provided the document concerned to the agency or 13
Minister who made the decision under review. 14
`87A Exception for successful challenge of s 35 notice 15
`(1) This section applies if an agency or Minister gives a notice 16
under section 35(2) and the commissioner is satisfied that the 17
document concerned does not include exempt matter under 18
section 36, 37, 42 or 42A. 19
`(2) Section 87(3) does not apply. 20
`(3) Section 89 applies except that the commissioner must-- 21
(a) first give a copy of the decision only to the agency or 22
Minister; and 23
(b) give a copy of the decision to each other participant only 24
if, at the end of 28 days after the decision is given to the 25
agency or Minister, the commissioner has not been 26
notified that the agency or Minister has applied for a 27
statutory order of review under the Judicial Review Act 28
1991 in relation to the commissioner's decision (judicial 29
review). 30
`(4) Further, if the commissioner directs that access to the 31
document is to be granted, the agency or Minister must 32
comply with the direction only if, at the end of 28 days after 33
s 45 69 s 45
Freedom of Information and Other Legislation
Amendment Bill 2005
the decision is given to the agency or Minister, the agency or 1
Minister has not applied for judicial review. 2
`88 Powers of commissioner on review 3
`(1) In the conduct of a review, the commissioner has, in addition 4
to any other power, power to-- 5
(a) review any decision that has been made by an agency or 6
Minister in relation to the application concerned; and 7
(b) decide any matter in relation to the application that 8
could, under this Act, have been decided by an agency 9
or Minister, or prescribed person under schedule 4, 10
section 10.62 11
`(2) In the conduct of a review of a decision mentioned in 12
section 101C(1)(c), the commissioner also has, in addition to 13
any other power, power to require the agency or Minister 14
concerned to conduct further searches for a document. 15
`(3) If it is established that a document is an exempt document, the 16
commissioner does not have power to direct that access to the 17
document is to be granted. 18
`(4) Any decision of the commissioner under this section has the 19
same effect as a decision of the agency, Minister or prescribed 20
person. 21
`(5) In this section-- 22
conduct further searches for a document includes make 23
inquiries to locate the document.'. 24
Clause 45 Insertion of new s 89A 25
Part 5, division 1, as renumbered, after section 89-- 26
insert-- 27
`89A Correction of mistakes in decisions 28
`(1) This section applies if the commissioner considers-- 29
62 Schedule 4 (Process for assessment of charges), section 10 (Financial hardship
claim if agency is a department)
s 46 70 s 48
Freedom of Information and Other Legislation
Amendment Bill 2005
(a) there is an obvious error in a written decision of the 1
commissioner; and 2
(b) the error resulted from an accidental slip or omission. 3
`(2) The commissioner, on application by a party or on the 4
commissioner's own initiative, may at any time correct the 5
error.'. 6
Clause 46 Amendment of s 93 (Secrecy) 7
Section 93, penalty, `20'-- 8
omit, insert-- 9
`100'. 10
Clause 47 Amendment of s 94 (Failure to produce documents or 11
attend proceedings) 12
Section 94, penalty, `20'-- 13
omit, insert-- 14
`100'. 15
Clause 48 Insertion of new ss 96A and 96B 16
After section 96-- 17
insert-- 18
`96A Vexatious applicants 19
`(1) The commissioner may declare in writing that a person is a 20
vexatious applicant. 21
`(2) The commissioner may make the declaration on the 22
commissioner's own initiative or on the application of 1 or 23
more agencies. 24
`(3) The commissioner may make a declaration only if the 25
commissioner is satisfied that-- 26
(a) the person has made repeated applications under this 27
Act in relation to the agency or agencies; and 28
s 49 71 s 49
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) the repeated applications involve an abuse of the right of 1
access, amendment or review under this Act. 2
`(4) For subsection (3)(b), repeated applications involve an abuse 3
of the right of access, amendment or review if, for example, 4
the applications were made for the purpose, or have had the 5
effect, of-- 6
(a) harassing or intimidating an individual or an employee 7
or employees of the agency or agencies; or 8
(b) unreasonably interfering with the operations of the 9
agency or agencies. 10
`(5) The commissioner must not make a declaration in relation to a 11
person without hearing the person and giving the person an 12
opportunity of being heard. 13
`(6) A declaration has effect subject to the terms and conditions, if 14
any, stated in the declaration. 15
`(7) Without limiting the conditions that may be stated, a 16
declaration may include a condition that the vexatious 17
applicant may make an application for access under 18
section 25, an application for amendment under part 4 or an 19
application for review under section 52, 60 or 73 only with the 20
written permission of the commissioner. 21
`(8) In this section-- 22
agency includes a Minister. 23
`96B Declaration may be varied or revoked 24
`(1) The commissioner may vary or revoke a declaration made 25
under section 96A. 26
`(2) The commissioner may vary or revoke the declaration on the 27
commissioner's own initiative or on the application of the 28
person subject to the declaration.'. 29
Clause 49 Insertion of new s 99A 30
After section 99-- 31
insert-- 32
s 50 72 s 50
Freedom of Information and Other Legislation
Amendment Bill 2005
`99A Third party proceedings 1
`(1) The commissioner or a member of the commissioner's staff 2
can not be compelled-- 3
(a) to produce an FOI document in third party legal 4
proceedings; or 5
(b) to disclose FOI information in third party legal 6
proceedings. 7
`(2) In this section-- 8
FOI document means a document received, or brought into 9
existence, by the commissioner or member in performing 10
functions under this Act. 11
FOI information means information that the commissioner or 12
member obtained while performing functions under this Act. 13
third party legal proceedings means a legal proceeding other 14
than-- 15
(a) a legal proceeding started by the commissioner; or 16
(b) a legal proceeding started against the commissioner or 17
member arising out of the performance of functions 18
under this Act.'. 19
Clause 50 Amendment of s 101 (Reports of commissioner) 20
(1) Section 101(3) and (4)-- 21
renumber as section 101(4) and (5). 22
(2) Section 101-- 23
insert-- 24
`(3) Without limiting subsection (2), a report under subsection (2) 25
must include, in relation to the financial year to which it 26
relates-- 27
(a) the number of applications for review to the 28
commissioner under section 73; and 29
(b) in relation to each application that results in a decision 30
under section 89-- 31
(i) the decision of the commissioner; and 32
s 51 73 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(ii) if the decision in relation to which the application 1
was made was a decision refusing access to exempt 2
matter--the provision of this Act under which the 3
matter was classified as exempt matter.'. 4
Clause 51 Insertion of new pt 5A 5
After part 5-- 6
insert-- 7
`Part 5A Office of the Information 8
Commissioner 9
`Division 1 General 10
`101A The Information Commissioner and Office 11
`(1) There is to be an Information Commissioner. 12
`(2) The office called the Office of the Information Commissioner 13
is established. 14
`(3) The office consists of the commissioner and the staff of the 15
office. 16
`101B Office is a statutory body 17
`(1) The office is a statutory body for the Financial Administration 18
and Audit Act 1977 and the Statutory Bodies Financial 19
Arrangements Act 1982. 20
`(2) The Statutory Bodies Financial Arrangements Act 1982, 21
part 2B sets out the way in which the office's powers under 22
this Act are affected by the Statutory Bodies Financial 23
Arrangements Act 1982. 24
`101C Functions of commissioner 25
`(1) The functions of the commissioner are to investigate and 26
review decisions of agencies and Ministers of the following 27
kinds-- 28
s 51 74 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(a) a decision under section 20 as to whether a person's 1
opinion is correct and a decision under section 20 not to 2
publish statements of affairs or as to whether a statement 3
of affairs complies with part 2; 4
(b) a decision under section 29, 29B or 54B63 refusing to 5
deal with an application; 6
(c) a decision refusing to grant access to documents in 7
accordance with an application under section 25; 8
(d) a decision giving access to documents subject to the 9
deletion of exempt matter or matter an agency or 10
Minister considers is irrelevant matter; 11
(e) a decision giving access to a document of a kind applied 12
for by the applicant but not to all documents of the kind 13
applied for by the applicant; 14
(f) a decision giving access to documents in a form 15
different to the form applied for by the applicant, unless 16
access in the form applied for would involve an 17
infringement of the copyright of a person other than the 18
State; 19
(g) a decision deferring providing access to documents; 20
(h) a decision about whether an application fee is payable; 21
(i) a decision that a processing charge or access charge is 22
payable under a final assessment notice if-- 23
(i) the applicant considers that the charge is wrongly 24
assessed; or 25
(ii) the applicant considers that the charge should be 26
waived because the applicant is in financial 27
hardship and an objection notice has been given in 28
which the applicant contended the charge should 29
be waived because the applicant is in financial 30
hardship; 31
(j) a decision, in relation to an objection notice, that-- 32
63 Section 29 (Refusal to deal with application--agency's or Minister's functions),
29B (Refusal to deal with application--previous application for same documents) or
54B (Refusal to deal with application--agency's or Minister's functions)
s 51 75 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(i) the original charge was wrongly assessed and 1
should be reduced on a proper assessment; or 2
(ii) a contention in the objection notice should be 3
rejected; 4
(k) a decision-- 5
(i) to disclose documents contrary to the views of a 6
government, agency or person obtained under 7
section 51; or 8
(ii) to disclose documents if an agency or Minister 9
should have taken, but has not taken, steps to 10
obtain the views of a government, agency or 11
person under section 51; 12
(l) a decision not to amend information in accordance with 13
an application under section 53; 14
(m) a decision mentioned in section 59(6); 15
(n) a decision that this Act, or a part of this Act, does not 16
apply to an entity-- 17
(i) because the entity is not an agency for this Act; or 18
(ii) because of section 11 or 1264 or another Act; 19
(o) a decision that this Act, or a part of this Act, does not 20
apply to a document because of section 11, 11A, 11B, 21
11C or 1265 or another Act; 22
(p) a decision that a person is not entitled to access to a 23
document because of section 11E.66 24
`(2) For subsection (1)(i), it does not matter whether the 25
processing charge or access charge has already been paid. 26
`(3) The functions of the commissioner also include-- 27
64 Section 11 (Act not to apply to certain bodies etc.) or 12 (Application of Act to
Information Commissioner)
65 Section 11A (Application of Act to GOCs), 11B (Application of Act to corporatised
corporations) or 11C (Application of Act to coronial documents)
66 Section 11E (Application of Act to offenders)
s 51 76 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(a) investigating and reviewing the grounds for a decision to 1
issue a certificate under section 36, 37, 42 or 42A; and 2
(b) investigating and reviewing whether, in relation to a 3
decision mentioned in subsection (1)(c) or (e), agencies 4
and Ministers have taken reasonable steps to identify 5
and locate documents applied for by applicants; and 6
(c) making declarations under section 96A;67 and 7
(d) providing information and help to agencies and 8
members of the public on matters relevant to part 5 or 9
5A68 of this Act. 10
`(4) The commissioner has power to do all things that are 11
necessary or convenient to be done for or in connection with 12
the performance of the commissioner's functions. 13
`101D Control of the office 14
`The commissioner controls the office. 15
`101E Commissioner not subject to direction 16
`(1) The commissioner is not subject to direction by any person 17
about-- 18
(a) the way in which the commissioner's powers in relation 19
to investigations and reviews are to be exercised; or 20
(b) the priority to be given to investigations and reviews. 21
`(2) Subsection (1) has effect despite the Public Service Act 1996. 22
`101F Budget and performance 23
`(1) For each financial year, the commissioner must develop, adopt 24
and submit to the Minister a budget for the office not later 25
than the day the Minister directs. 26
67 Section 96A (Vexatious applicants)
68 Part 5 (External review of decisions) or 5A (Office of the Information
Commissioner)
s 51 77 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) A budget has no effect until approved by the Minister. 1
`(3) During a financial year the commissioner may develop, adopt 2
and submit to the Minister amendments to the office's budget. 3
`(4) An amendment has no effect until approved by the Minister. 4
`(5) The office must comply with its budget. 5
`(6) This section does not require the commissioner to give the 6
Minister any details that would, if given, prejudice a current 7
investigation or review by the commissioner. 8
`Division 2 Information Commissioner 9
`101G Appointment 10
`(1) The commissioner is appointed by the Governor in Council. 11
`(2) The commissioner is appointed under this Act and not under 12
the Public Service Act 1996. 13
`101H Procedure before appointment 14
`(1) A person may be appointed as commissioner only if-- 15
(a) the Minister has placed press advertisements nationally 16
calling for applications from suitably qualified persons 17
to be considered for appointment; and 18
(b) the Minister has consulted with the parliamentary 19
committee about-- 20
(i) the process of selection for appointment; and 21
(ii) the appointment of the person as commissioner. 22
`(2) Subsection (1)(a) and (b)(i) does not apply to the 23
reappointment of a person as commissioner. 24
`101I Term of appointment 25
`The commissioner holds office for the term, of not more than 26
3 years, stated in the instrument of appointment. 27
s 51 78 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
`101J Remuneration and conditions 1
`(1) The commissioner is to be paid remuneration and other 2
allowances decided by the Governor in Council. 3
`(2) The remuneration paid to the commissioner must not be 4
reduced during the commissioner's term of office without the 5
commissioner's written consent. 6
`(3) In relation to matters not provided for by this Act, the 7
commissioner holds office on the terms and conditions 8
decided by the Governor in Council. 9
`101K Leave of absence 10
`The Minister may grant leave to the commissioner in 11
accordance with entitlements available to the commissioner 12
under the commissioner's conditions of office. 13
`101L Preservation of rights if public service officer 14
appointed 15
`(1) A public service officer who is appointed to the office of 16
commissioner or who is appointed to act in the office is 17
entitled to retain all existing and accruing rights as if service 18
in the office were a continuation of service as a public service 19
officer. 20
`(2) If the person stops holding the office for a reason other than 21
misconduct, the person is entitled to be employed as a public 22
service officer. 23
`(3) The person is to be employed on the classification level and 24
remuneration that the public service commissioner or another 25
entity prescribed under a regulation considers the person 26
would have attained in the ordinary course of progression if 27
the person had continued in employment as a public service 28
officer. 29
s 51 79 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
`101M Oath before performing duties 1
`(1) Before performing the duties of office, the commissioner must 2
make an oath or affirmation to the effect that he or she will 3
faithfully and impartially perform the duties of the office. 4
`(2) The oath must be administered by the Speaker. 5
`101N Restriction on outside employment 6
`(1) The commissioner must not, without the Minister's prior 7
approval in each particular case-- 8
(a) hold any office of profit other than that of 9
commissioner; or 10
(b) engage in any remunerative employment or undertaking 11
outside the duties of the office. 12
`(2) Contravention of subsection (1) is misconduct under 13
section 101Q(a). 14
`101O Resignation 15
`(1) The commissioner may resign by signed notice given to the 16
Minister. 17
`(2) As soon as practicable after the notice is given to the Minister, 18
the Minister must-- 19
(a) give the notice to the Governor for information; and 20
(b) give a copy of the notice to-- 21
(i) the Speaker of the Legislative Assembly; and 22
(ii) the chairperson of the parliamentary committee. 23
`(3) Failure to comply with subsection (2) does not affect the 24
effectiveness of the resignation. 25
`101P Acting commissioner 26
`(1) The Governor in Council may appoint a person to act as 27
commissioner-- 28
(a) during a vacancy in the office; or 29
s 51 80 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) during any period, or during all periods, when the 1
commissioner is absent from duty or from Australia or 2
is, for another reason, unable to perform the duties of 3
the office. 4
`(2) The acting commissioner is appointed under this Act and not 5
the Public Service Act 1996. 6
`(3) Before performing the duties of office, the acting 7
commissioner must make an oath or affirmation to the effect 8
that he or she will faithfully and impartially perform the duties 9
of the office. 10
`(4) The oath must be administered by the Speaker. 11
`(5) The Acts Interpretation Act 1954, section 25(1)(b)(iv) and 12
(v)69 does not apply to the office of acting commissioner. 13
`Division 3 Commissioner may be removed or 14
suspended from office 15
`101Q Grounds for removal or suspension from office 16
`The following are grounds for removal or suspension of the 17
commissioner from office-- 18
(a) proved incapacity, incompetence or misconduct; 19
(b) conviction of an indictable offence. 20
`101R Removal of commissioner on address 21
`(1) The Governor may, on an address from the Assembly, remove 22
the commissioner from office. 23
`(2) The motion for the address may be moved only by the 24
Premier. 25
`(3) The Premier may move the motion only if-- 26
(a) the Premier has given the commissioner a statement 27
setting out the reasons for the motion; and 28
69 Acts Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers)
s 51 81 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) the statement and any written response by the 1
commissioner have been tabled in the Assembly; and 2
(c) the Premier has consulted with the parliamentary 3
committee about the motion; and 4
(d) agreement to the motion has been obtained from-- 5
(i) all members of the parliamentary committee; or 6
(ii) a majority of members of the parliamentary 7
committee, other than a majority consisting wholly 8
of members of the political party or parties in 9
government in the Assembly. 10
`101S Suspension of commissioner on address 11
`(1) The Governor may, on an address from the Assembly, suspend 12
the commissioner from office. 13
`(2) The motion for the address may be moved only by the 14
Premier. 15
`(3) The Premier may move the motion only if-- 16
(a) the Premier has given the commissioner a statement 17
setting out the reasons for the motion; and 18
(b) the statement and any written response by the 19
commissioner have been tabled in the Assembly; and 20
(c) the Premier has consulted with the parliamentary 21
committee about the motion; and 22
(d) agreement to the motion has been obtained from-- 23
(i) all members of the parliamentary committee; or 24
(ii) a majority of members of the parliamentary 25
committee, other than a majority consisting wholly 26
of members of the political party or parties in 27
government in the Assembly. 28
`(4) The commissioner is entitled to be paid salary and allowances 29
for the period of the suspension only if-- 30
(a) the Assembly resolves that salary and allowances be 31
paid for the period; or 32
s 51 82 s 51
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) the Assembly does not pass a resolution under 1
paragraph (a) and the Governor in Council approves the 2
payment of salary and allowances for the period. 3
`101T Suspension of commissioner if Assembly not sitting 4
`(1) If the Assembly is not sitting, the Governor in Council may 5
suspend the commissioner from office. 6
`(2) The Governor in Council may suspend the commissioner only 7
if-- 8
(a) the Premier has given the commissioner a statement 9
setting out the reasons for the suspension; and 10
(b) the Premier has considered any response by the 11
commissioner to the statement. 12
`(3) The Premier must table the statement and any written 13
response by the commissioner in the Assembly within 14
3 sitting days after the day the suspension begins. 15
`(4) The suspension stops having effect-- 16
(a) at the end of 6 sitting days after the day the suspension 17
begins; or 18
(b) if the commissioner is earlier suspended or removed 19
from office on an address from the Assembly--at the 20
earlier time. 21
`(5) If the suspension stops having effect under subsection (4)(a), 22
the commissioner is entitled to be paid salary and allowances 23
for the period of the suspension. 24
`(6) Except as provided in subsection (5), the commissioner is 25
entitled to be paid salary and allowances for the period of the 26
suspension only if-- 27
(a) the Assembly resolves that salary and allowances be 28
paid for the period; or 29
(b) the Assembly does not pass a resolution under 30
paragraph (a) and the Governor in Council approves the 31
payment of salary and allowances for the period. 32
s 52 83 s 52
Freedom of Information and Other Legislation
Amendment Bill 2005
`101U Acts Interpretation Act 1954 1
`The Acts Interpretation Act 1954, section 25(1)(b)(i) to (iii) 70
2
does not apply to the removal or suspension of the 3
commissioner. 4
`Division 4 Staff of the office 5
`101V Staff employed under Public Service Act 1996 6
`The staff of the office are to be employed under the Public 7
Service Act 1996. 8
`101W Staff subject only to direction of commissioner 9
`(1) The staff of the office are not subject to direction by any 10
person, other than the commissioner or a person authorised by 11
the commissioner, about-- 12
(a) the way in which the commissioner's powers in relation 13
to investigations and reviews are to be exercised; or 14
(b) the priority to be given to investigations and reviews. 15
`(2) Subsection (1) has effect despite the Public Service Act 16
1996.'. 17
Clause 52 Amendment of s 105 (Precautions) 18
(1) Section 105(b)(i)-- 19
omit, insert-- 20
`(i) if the application is made by the applicant's 21
agent--only by the applicant or the agent; or'. 22
(2) Section 105(c)-- 23
omit, insert-- 24
`(c) must ensure that, if the application is made by the 25
applicant's agent, the agent has the written authority of 26
70 Acts Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers)
s 53 84 s 54
Freedom of Information and Other Legislation
Amendment Bill 2005
the applicant to obtain the information or is otherwise 1
properly authorised by the applicant to obtain the 2
information.'. 3
Clause 53 Amendment of s 106 (Offence of unlawful access) 4
Section 106, penalty, `20'-- 5
omit, insert-- 6
`100'. 7
Clause 54 Amendment of s 108 (Report to Legislative Assembly by 8
agencies and Ministers) 9
Section 108(4)(a) to (j)-- 10
omit, insert-- 11
`(a) the number of applications for access under this Act 12
made to each agency and to each Minister; and 13
(b) the number of preliminary assessment notices and the 14
number of final assessment notices given by each 15
agency and by each Minister; and 16
(c) the number of decisions not to give access to a 17
document, the provisions of this Act under which matter 18
was classified as exempt and the number of times each 19
provision was invoked; and 20
(d) the number of applications under section 52 for review 21
of a decision, and, if the officer conducting the review 22
confirmed, in whole or part, a decision classifying 23
matter as exempt matter, the provision of this Act under 24
which that decision was made; and 25
(e) the number of applications for amendment of 26
information under this Act made to each agency and to 27
each Minister; and 28
(f) the number of applications under section 60 for review 29
of a decision; and 30
(g) the number of notices served on the principal officer of 31
the agency under section 20(1) and the number of 32
s 55 85 s 55
Freedom of Information and Other Legislation
Amendment Bill 2005
decisions by the principal officer that were adverse to 1
the person's claim; and 2
(h) particulars of any disciplinary action taken against an 3
officer in relation to the administration of this Act; and 4
(i) the amount of fees and charges collected by the agency 5
or Minister; and 6
(j) any other facts indicating an effort by the agency or 7
Minister to implement and administer this Act.'. 8
Clause 55 Insertion of new s 108C 9
After section 108B-- 10
insert-- 11
`108C Functions of parliamentary committee 12
`The parliamentary committee has the following functions 13
under this Act-- 14
(a) to monitor and review the performance by the 15
commissioner of the commissioner's functions under 16
this Act; 17
(b) to report to the Legislative Assembly on any matter 18
concerning the commissioner, the commissioner's 19
functions or the performance of the commissioner's 20
functions that the committee considers should be drawn 21
to the Legislative Assembly's attention; 22
(c) to examine each annual report tabled in the Legislative 23
Assembly under this Act and, if appropriate, to 24
comment on any aspect of the report; 25
(d) to report to the Legislative Assembly any changes to the 26
functions, structures and procedures of the office of 27
information commissioner the committee considers 28
desirable for the more effective operation of this Act; 29
(e) the other functions conferred on the parliamentary 30
committee by this Act. 31
s 56 86 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
1
Note--
2
The parliamentary committee also has functions under other
3
Acts, for example, the Parliament of Queensland Act 2001,
4
section 86 (Administrative review reform).'.
Clause 56 Replacement of s 109 (Regulations) 5
Section 109-- 6
omit, insert-- 7
`109 Regulation-making power 8
`(1) The Governor in Council may make regulations under this 9
Act. 10
`(2) Without limiting subsection (1), a regulation may be made 11
about the following-- 12
(a) an application fee for an application for access to a 13
document that does not concern the applicant's personal 14
affairs; 15
(b) a processing charge and access charge for access to a 16
document that does not concern the applicant's personal 17
affairs; 18
(c) waiver of charges for up to 2 hours of charges consisting 19
of processing charges and access charges; 20
(d) deposits required on account of charges; 21
(e) the officers who may give decisions on behalf of an 22
agency. 23
`(3) However, a regulation providing for the making of charges 24
must not allow the amount or rate of charge to vary according 25
to whether the document is a document of 1 agency or of an 26
agency included in 1 class of agency or is a document of 27
another agency or of an agency included in another class of 28
agency.'. 29
Clause 57 Insertion of new pt 10 30
After part 9-- 31
insert-- 32
s 57 87 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
`Part 10 Transitional provisions for 1
Freedom of Information and 2
Other Legislation Amendment 3
Act 2005 4
`113 Definition for pt 10 5
`In this part-- 6
amending Act means the Freedom of Information and Other 7
Legislation Amendment Act 2005. 8
`114 Application of amendments to existing applications 9
`(1) This Act, as in force at the time an access application or 10
amendment application is received, continues to apply in 11
relation to the application as if any subsequent amendment of 12
the Act under the amending Act had not been enacted. 13
`(2) However, section 42,71 as amended by section 24(2) and (3) of 14
the amending Act (the section 24 amendment), applies in 15
relation to an access application received before the 16
commencement of the section 24 amendment. 17
`(3) Also, subsection (1) applies subject to section 115. 18
`(4) In this section-- 19
access application means an application for access to a 20
document. 21
amendment application means an application for amendment 22
of information including the addition of a notation to 23
information. 24
subsequent amendment, in relation to an application, means 25
an amendment that commences after the application is 26
received. 27
71 Section 42 (Matter relating to law enforcement or public safety)
s 57 88 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
`115 Application of particular amendments to reviews etc. 1
`(1) Section 73(1)(d), as in force immediately before the
72
2
commencement of section 38 of the amending Act, continues 3
to apply in relation to an application for review made within 4
60 days after the commencement as if the amending Act had 5
not been enacted. 6
`(2) Section 74,73 as inserted by section 39 of the amending Act 7
(the section 39 amendment), applies in relation to a review 8
whether started before or after the commencement of the 9
section 39 amendment. 10
`(3) Section 77,74 as inserted by section 40 of the amending Act 11
(the section 40 amendment), applies in relation to a review 12
whether started before or after the commencement of the 13
section 40 amendment. 14
`(4) Section 87,75 as inserted by section 44 of the amending Act 15
(the section 44 amendment), applies in relation to a review of 16
an access application whether received before or after the 17
commencement of the section 44 amendment. 18
`(5) Section 89A,76 as inserted by section 45 of the amending Act 19
(the section 45 amendment), applies whether the error was 20
made before or after the commencement of the section 45 21
amendment. 22
`(6) Section 99A,77 as inserted by section 49 of the amending Act 23
(the section 49 amendment), applies in relation to 24
proceedings whether started before or after the 25
commencement of the section 49 amendment. 26
`(7) In this section-- 27
access application means an application for access to a 28
document. 29
72 Section 73 (Applications for review)
73 Section 74 (Commissioner to notify agency or Minister)
74 Section 77 (Commissioner may decide not to review)
75 Section 87 (Commissioner to ensure non-disclosure of particular matter)
76 Section 89A (Correction of mistakes in decisions)
77 Section 99A (Third party proceedings)
s 57 89 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
`116 Charges for existing applications for access 1
`(1) The Freedom of Information Regulation 1992, as in force 2
immediately before the commencement of section 56 of the 3
amending Act (the section 56 amendment), continues to 4
apply in relation to charging for an existing application as if 5
the section 56 amendment had not been enacted. 6
`(2) In this section-- 7
existing application means an application made, before the 8
commencement of the section 56 amendment, for access to a 9
document that does not concern the applicant's personal 10
affairs. 11
`117 Continuation of appointment as commissioner 12
`A person who, immediately before the commencement of 13
section 101G,78 was the commissioner continues as the 14
commissioner. 15
`118 Continuation of current staff member's employment 16
under Public Service Act 1996 17
`(1) On the commencement-- 18
(a) a current officer is employed under the Public Service 19
Act 1996; and 20
(b) the current officer is entitled to retain all existing and 21
accruing rights, including rights under former 22
section 70D(1), in relation to the current officer's 23
employment as an officer of the commissioner; and 24
(c) the current officer's service as an officer of the 25
commissioner must be regarded as service as a public 26
service officer for deciding the current officer's rights as 27
a public service officer; and 28
(d) the fact of employment under the Public Service Act 29
1996 does not break the current officer's continuity of 30
service. 31
78 Section 101G (Appointment)
s 57 90 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
`(2) On the commencement-- 1
(a) a current employee is employed on an equivalent basis 2
under the Public Service Act 1996, section 113;79 and 3
4
Examples--
5
1 A current employee who was a part-time temporary
6
employee is employed on a temporary basis and part-time
7
under the Public Service Act 1996, section 113, that is,
8
under section 113(2)(a).
9
2 A current employee who was a casual employee is
10
employed on a casual basis under the Public Service Act
11
1996, section 113, that is, under section 113(2)(b).
(b) the current employee is entitled to retain all existing and 12
accruing rights in relation to the current employee's 13
employment under former section 70B; and 14
(c) the current employee's service as an employee under 15
former section 70B must be regarded as service as an 16
employee under the Public Service Act 1996, 17
section 113 for deciding the current employee's rights 18
under that Act; and 19
(d) the fact of employment under the Public Service Act 20
1996 does not break the current employee's continuity 21
of service. 22
`(3) In this section-- 23
current employee means a person who, immediately before 24
the commencement, was a temporary employee or casual 25
employee employed by the commissioner under former 26
section 70B.80 27
current officer means a person who, immediately before the 28
commencement, was an officer of the commissioner 29
appointed under former section 70.81 30
former section 70 means section 7082 as in force from time to 31
time before the commencement. 32
79 Public Service Act 1996, section 113 (Employment of temporary employees)
80 Section 70B (Temporary and casual employees)
81 Section 70 (Officers)
82 Section 70 (Officers)
s 57 91 s 57
Freedom of Information and Other Legislation
Amendment Bill 2005
former section 70B means section 70B83 as in force from time 1
to time before the commencement. 2
former section 70D(1) means section 70D(1)84 as in force 3
from time to time before the commencement. 4
the commencement means the commencement of 5
section 101V.85 6
`119 Report to Legislative Assembly 7
`(1) It is sufficient compliance with section 108(4) for the report 8
under section 108(1) in relation to the financial year ending 9
30 June 2005 to include the particulars stated in former 10
section 108(4) in relation to each agency and Minister. 11
`(2) In this section-- 12
former section 108(4) means section 108(4) as in force 13
immediately before the commencement of section 54 of the 14
amending Act. 15
`120 Reports of commissioner 16
`It is sufficient compliance with section 101 for a report 17
mentioned in the section in relation to the financial year ended 18
30 June 2005 to comply with section 101 as in force before 19
the commencement of section 5086 of the amending Act. 20
`121 Amendment of regulation by Freedom of Information 21
and Other Legislation Amendment Act 2005 does 22
not affect powers of Governor in Council 23
`The amendment of the Freedom of Information Regulation 24
1992 by the amending Act does not affect the power of the 25
Governor in Council to further amend the regulation or to 26
repeal it. 27
83 Section 70B (Temporary and casual employees)
84 Section 70D (Preservation of rights if public service officer appointed)
85 Section 101V (Staff employed under Public Service Act 1996)
86 Section 50 (Amendment of s 101 (Reports of commissioner))
s 58 92 s 60
Freedom of Information and Other Legislation
Amendment Bill 2005
`122 Re-enactment of regulation-making power does not 1
affect validity of Freedom of Information Regulation 2
1992 3
`The re-enactment of section 109 by the amending Act did not 4
repeal the Freedom of Information Regulation 1992 or any 5
provision of that regulation.'. 6
Clause 58 Amendment of sch 1 (Secrecy provisions giving 7
exemption) 8
(1) Schedule 1, entries for the Biodiscovery Act 2004, Crime and 9
Misconduct Act 2001, Gene Technology Act 2001, Prostitution 10
Act 1999 and Public Sector Ethics Act 1994-- 11
omit. 12
(2) Schedule 1-- 13
insert-- 14
`Witness Protection Act 2000, sections 36 and 38'. 15
Clause 59 Amendment of sch 2 (Application of Act to GOCs) 16
Schedule 2-- 17
insert-- 18
`5 Golden Casket Lottery Corporation Lotteries Act 1997,
Limited ACN 078 785 449 section 225A'.
Clause 60 Insertion of new sch 3 19
After schedule 2-- 20
insert-- 21
s 60 93 s 60
Freedom of Information and Other Legislation
Amendment Bill 2005
`Schedule 3 Application of Act to other Acts 1
section 11D 2
Biodiscovery Act 2004, section 11687 3
Crime and Misconduct Act 2001, sections 120 and 371(4)88 4
Education (General Provisions) Act 1989, section 6989 5
Gene Technology Act 2001, section 187(3) 90
6
Police Powers and Responsibilities Act 2000, sections 122, 321 and 40191 7
Police Service Administration Act 1990, section 5A.2292 8
Prostitution Act 1999, section 13793 9
Public Sector Ethics Act 1994, section 33A94 10
Sugar Industry Act 1999, section 107T95 11
Workers' Compensation and Rehabilitation Act 2003, sections 379(2) 12
and 475(2)96'. 13
87 Biodiscovery Act 2004, section 116 (Freedom of Information Act 1992 does not
apply to benefit sharing agreement)
88 Crime and Misconduct Act 2001, sections 120 (Acts that do not apply to divs 25)
and 371 (Warrants)
89 Education (General Provisions) Act 1989, section 69 (Freedom of Information Act
1992)
90 Gene Technology Act 2001, section 187 (Confidential commercial information must
not be disclosed)
91 Police Powers and Responsibilities Act 2000, sections 122 (Certain Acts do not
apply to this part), 321 (Certain Acts do not apply to this chapter) and
401 (Particular Acts do not apply to this division)
92 Police Service Administration Act 1990, section 5A.22 (Application of Freedom of
Information Act 1992)
93 Prostitution Act 1999, section 137 (Application of Freedom of Information Act)
94 Public Sector Ethics Act 1994, section 33A (Freedom of Information Act does not
apply)
95 Sugar Industry Act 1999, section 107T (Exempt matter)
96 Workers' Compensation and Rehabilitation Act 2003, sections 379 (Application of
various other Acts) and 475 (Application of various other Acts)
s 61 94 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 61 Insertion of new sch 4 1
After schedule 3-- 2
insert-- 3
`Schedule 4 Process for assessment of 4
charges 5
section 35D 6
`Part 1 Preliminary assessment 7
process 8
`1 Preliminary assessment of charges 9
`(1) This section applies if an agency or Minister considers a 10
processing charge or access charge is payable in relation to an 11
application. 12
`(2) The agency or Minister must give the applicant a written 13
notice (a preliminary assessment notice) stating-- 14
(a) the agency's or Minister's preliminary assessment of the 15
amount of any processing charge or access charge; and 16
(b) the basis on which the preliminary assessment is made. 17
`(3) The preliminary assessment notice must also state the 18
following-- 19
(a) that the applicant may consult with a stated officer of the 20
agency or a stated member of the staff of the Minister 21
with a view to making an application in a form that 22
would reduce the original charge; 23
(b) the effect of sections 2 and 3(1) and (2);97 24
(c) any matters that may be taken into account under the 25
Act or a regulation in deciding whether any processing 26
97 Sections 2 (Deemed withdrawal of application) and 3 (Objection notice)
s 61 95 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
charge and access charge should be waived because the 1
applicant is in financial hardship; 2
(d) the original deposit, if any. 3
`2 Deemed withdrawal of application 4
`An application is taken to have been withdrawn unless, 5
within the period of 30 days, or the further period the agency 6
or Minister allows, after the preliminary assessment notice is 7
given-- 8
(a) if an original deposit is stated in the notice--the 9
applicant pays the original deposit and agrees in writing 10
to pay the original charge; or 11
(b) if an original deposit is not stated in the notice--the 12
applicant agrees in writing to pay the original charge; or 13
(c) the applicant gives the agency or Minister an objection 14
notice. 15
`Part 2 Objection process 16
`3 Objection notice 17
`(1) An applicant is not entitled to a review under section 52 of the 18
Act98 of a preliminary assessment notice. 19
`(2) However, within the period of 30 days, or the further period 20
the agency or Minister allows, after a preliminary assessment 21
notice is given, the applicant may give the agency or Minister 22
a written notice (an objection notice) of, including the reasons 23
for, an applicant's contention that-- 24
(a) an original charge has been wrongly assessed and 25
should be reduced on a proper assessment; or 26
98 Section 52 of the Act (Internal review)
s 61 96 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
(b) any processing charge and access charge should be 1
waived because the applicant is in financial hardship. 2
`(3) Subject to section 10,99 the agency or Minister may decide, in 3
relation to an objection notice, that-- 4
(a) the original charge was wrongly assessed and should be 5
reduced on a proper assessment; or 6
(b) any processing charge and access charge are to be 7
waived because the applicant is in financial hardship; or 8
(c) the contention in the objection notice should be rejected. 9
`4 New preliminary assessment notice 10
`(1) If the agency or Minister makes a decision mentioned in 11
section 3(3)(a), other than a decision that no charges are 12
payable, the agency or Minister must give the applicant a new 13
preliminary assessment notice that also states the following-- 14
(a) the new original deposit, if any; 15
(b) that the application will be taken to have been 16
withdrawn unless, within the period of 30 days, or the 17
further period the agency or Minister allows, after the 18
new notice is given-- 19
(i) either-- 20
(A) if a new original deposit is stated in the 21
notice--the applicant pays the new original 22
deposit and agrees in writing to pay the new 23
original charge; or 24
(B) if a new original deposit is not stated in the 25
notice--the applicant agrees in writing to 26
pay the new original charge; or 27
(ii) the applicant applies for a review under part 5 of 28
the Act100 of the new preliminary assessment 29
notice; 30
99 Section 10 (Financial hardship claim if agency is a department)
100 Part 5 of the Act (External review of decisions)
s 61 97 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
(c) the applicant may not give the agency or Minister a 1
further objection notice and is not entitled to a review 2
under section 52 of the Act101 of the new preliminary 3
assessment notice. 4
`(2) If the applicant fails to comply with subsection (1)(b)(i) or (ii) 5
within the period or further period mentioned in 6
subsection (1)(b), the applicant is taken to have withdrawn the 7
application. 8
`5 Notice that charges waived 9
`If the agency or Minister makes a decision mentioned in 10
section 3(3)(b),102 the agency or Minister must give the 11
applicant a notice stating that any processing charge and 12
access charge is to be waived because the applicant is in 13
financial hardship. 14
`6 Notice of other decision 15
`If the agency or Minister makes a decision mentioned in 16
section 3(3)(c),103 the agency or Minister must give the 17
applicant a notice stating-- 18
(a) the decision and the reasons for the decision; and 19
20
Note--
21
See the Acts Interpretation Act 1954, section 27B (Content of
22
statement of reasons for decision).
(b) the name and designation of the person making the 23
decision; and 24
(c) appropriate information about-- 25
(i) the applicant's rights to review of the decision; and 26
(ii) the procedure for the exercise of the rights, 27
including, if applicable, particulars of the way in 28
101 Section 52 of the Act (Internal review)
102 Section 3 (Objection notice)
103 Section 3 (Objection notice)
s 61 98 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
which an application for review under section 52 1
of the Act104 may be made. 2
`7 Deemed decision 3
`If within the period of 30 days after an applicant gives an 4
agency or Minister an objection notice, the applicant has not 5
received notice of a decision under section 3(3),105 the 6
principal officer of the agency or the Minister is taken to have 7
made, on the last day of the period, a decision under 8
section 3(3)(c) to which section 6106 does not apply. 9
`Part 3 Financial hardship process 10
`8 Concession card given and accepted 11
`(1) This section applies if-- 12
(a) an applicant who claims to be the holder of a concession 13
card gives an agency or Minister a copy of the 14
concession card before the applicant is given a 15
preliminary assessment notice; and 16
(b) the agency or Minister is satisfied the applicant is the 17
holder of a concession card. 18
`(2) Section 1107 does not apply in relation to the application and, 19
subject to section 10,108 the agency or Minister must give the 20
applicant a notice stating that any processing charge and 21
access charge is to be waived because the applicant is in 22
financial hardship. 23
104 Section 52 of the Act (Internal review)
105 Section 3 (Objection notice)
106 Section 6 (Notice of other decision)
107 Section 1 (Preliminary assessment of charges)
108 Section 10 (Financial hardship claim if agency is a department)
s 61 99 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
`9 Concession card given but not accepted 1
`(1) This section applies if-- 2
(a) an applicant who claims to be the holder of a concession 3
card gives an agency or Minister a copy of the 4
concession card before the applicant is given a 5
preliminary assessment notice; and 6
(b) the agency or Minister is not satisfied the applicant is 7
the holder of a concession card. 8
`(2) If this section applies-- 9
(a) section 1,109 other than section 1(3)(b) and (c), applies in 10
relation to the application; and 11
(b) the preliminary assessment notice under section 1 must 12
state the agency or Minister is not satisfied the applicant 13
is the holder of a concession card and give the reasons 14
the agency or Minister is not satisfied; and 15
(c) the preliminary assessment notice must state the effect 16
of the following provisions-- 17
(i) section 2; 18
(ii) section 3(1) and (2)(a); 19
(iii) paragraph (d); and 20
(d) the applicant may not give the agency or Minister an 21
objection notice in which the applicant contends that 22
charges should be waived because the applicant is in 23
financial hardship. 24
`(3) If within the period of 30 days after the applicant gives the 25
agency or Minister a copy of the concession card, the 26
applicant has not received a notice under section 8110 or a 27
preliminary assessment notice, the principal officer of the 28
agency or the Minister is taken to have made, on the last day 29
of the period, a decision that the agency or the Minister is not 30
satisfied the applicant is the holder of a concession card. 31
109 Section 1 (Preliminary assessment of charges)
110 Section 8 (Concession card given and accepted)
s 61 100 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
`10 Financial hardship claim if agency is a department 1
`(1) This section applies if an agency that is a department is 2
given-- 3
(a) an objection notice in which the applicant contends 4
charges should be waived because the applicant is in 5
financial hardship; or 6
(b) a copy of the concession card before the applicant, who 7
claims to be the holder of the card, is given a 8
preliminary assessment notice. 9
`(2) The agency must give the prescribed person-- 10
(a) a copy of the application; and 11
(b) a copy of the objection notice or concession card. 12
`(3) The prescribed person must decide whether or not to waive 13
any processing charge and access charge because the 14
applicant is in financial hardship. 15
`(4) The prescribed person must advise the agency of the decision 16
and the reasons for the decision. 17
`(5) For having the prescribed person's decision reviewed under 18
this Act, the prescribed person's decision is taken to be the 19
decision of the agency's principal officer. 20
`(6) In this section-- 21
prescribed person means a person prescribed under a 22
regulation as the person who decides whether any processing 23
charge and access charge may be waived because the 24
applicant is in financial hardship. 25
`Part 4 Final assessment process 26
`11 Final assessment notice 27
`(1) If a processing charge or access charge is payable in relation 28
to an application, then, in the notice given under section 34 of 29
s 61 101 s 61
Freedom of Information and Other Legislation
Amendment Bill 2005
the Act,111 the agency or Minister must give the applicant a 1
written notice (a final assessment notice) stating-- 2
(a) the agency's or Minister's final assessment of the 3
amount of any processing charge or access charge; and 4
(b) the basis on which the final assessment is made. 5
`(2) A final assessment notice may be given whether access is to 6
be given immediately or subject to deferral. 7
`(3) The amount of the processing charge mentioned in a final 8
assessment notice may not be more than the amount of the 9
processing charge mentioned in the preliminary assessment 10
notice. 11
`(4) The amount of the access charge mentioned in a final 12
assessment notice may be more than the amount of the access 13
charge mentioned in the preliminary assessment notice. 14
`(5) If, after the final assessment notice is given, the applicant asks 15
for an additional thing to be done in relation to the provision 16
of access-- 17
(a) the agency or Minister may give the applicant a new 18
final assessment notice that increases the total amount of 19
the access charge mentioned in the previous final 20
assessment notice; and 21
(b) the applicant must pay the increase. 22
23
Example--
24
Assume the access charge mentioned in an agency's final assessment
25
notice is based on supervising the inspection by the applicant of
26
documents for 2 hours. The applicant pays the access charge stated in
27
the final assessment notice. At the inspection, the applicant wishes to
28
continue the inspection for a further 2 hours and to obtain copies of
29
some of the documents. The agency may give the applicant a new final
30
assessment notice that increases the total amount of the access charge
31
mentioned in the previous final assessment notice.'.
111 Section 34 of the Act (Notification of decisions and reasons)
s 62 102 s 64
Freedom of Information and Other Legislation
Amendment Bill 2005
Part 2 Amendment of Freedom of 1
Information Regulation 1992 2
Clause 62 Regulation amended in pt 2 3
This part amends the Freedom of Information Regulation 4
1992. 5
Clause 63 Omission of ss 5 and 5A 6
Sections 5 and 5A-- 7
omit. 8
Clause 64 Replacement of ss 7 to 12 9
Sections 7 to 12-- 10
omit, insert-- 11
`7 Amount of charges--Act, s 7, definitions access 12
charge and processing charge 13
`(1) This section applies in relation to an applicant applying for 14
access to a document that does not concern the applicant's 15
personal affairs. 16
`(2) The schedule, part 1 sets out the processing charges. 17
`(3) The schedule, part 2 sets out the access charges. 18
`(4) This section applies subject to sections 8 and 9. 19
`8 No charge for less than 2 hours 20
`Despite section 7 and the schedule, a charge is not payable 21
for doing, for an application, a thing mentioned in the 22
schedule, part 1, item 1 or part 2, item 1, or a combination of 23
the things mentioned in those items, if the total amount of 24
time spent by an officer or officers doing the thing or things is 25
2 hours or less. 26
27
Examples--
28
1 Assume an officer spends, for the application, 1 hour searching for
29
documents and deciding the application for access and 30 minutes
s 64 103 s 64
Freedom of Information and Other Legislation
Amendment Bill 2005
1
supervising inspection of the documents. No charge is payable
2
under the schedule, part 1, item 1 or part 2, item 1.
3
2 Assume an officer spends, for the application, 2.5 hours searching
4
for documents and deciding the application for access and 2 hours
5
supervising inspection of the documents. This section does not
6
apply and a charge of $91.80, calculated under this regulation, is
7
payable for the activities.
`9 No charge for particular search and retrieval time 8
`Despite section 7 and the schedule, the amount of time spent 9
searching for or retrieving a document does not include-- 10
(a) if the document is not found in the place in which, 11
according to the filing system of the agency or of the 12
office of the Minister (the relevant filing system) it 13
ought to be located--any time other than the time that 14
would have been spent by the agency or Minister in 15
searching for or retrieving the document if the document 16
had been found in that place; or 17
(b) if the relevant filing system ought reasonably to have 18
indicated, but does not indicate, the place in which the 19
document is located--any time other than the time that 20
would have been spent by the agency or Minister in 21
searching for or retrieving the document if the relevant 22
filing system had indicated the place in which the 23
document is located and the document had been found 24
in that place. 25
`10 Deposit--Act, s 35B(6) 26
`If an agency or Minister considers it appropriate that the 27
applicant pay a deposit on account of a charge, the deposit 28
must be 25% of the charge. 29
`11 Prescribed person--Act, sch 4, s 10(6) 30
`The chief executive of the Department of the Premier and 31
Cabinet is the prescribed person who decides whether 32
processing and access charges are to be waived because the 33
applicant is in financial hardship.'. 34
s 65 104 s 65
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 65 Replacement of schedule (Charges) 1
Schedule-- 2
omit, insert-- 3
`Schedule Charges 4
section 7 5
`Part 1 Processing charges 6
1 Charge for time spent by an agency or Minister in searching 7
for or retrieving a document, or in making, or doing things 8
related to making, a decision on an application for 9
access--$5.10 for each 15 minutes or part of 15 minutes. 10
`Part 2 Access charges 11
1 Charge if an agency or Minister makes an officer available to 12
supervise the inspection of a document--$5.10 for each 13
15 minutes or part of 15 minutes. 14
2 Charge for giving access to a written document by providing a 15
black and white photocopy of the document in 16
A4 size--$0.20 for each page. 17
3 Charge for a form of access to a document under the Act, 18
section 30, other than by inspection or providing a black and 19
white photocopy of the document in A4 size--an amount that 20
is not more than the actual cost incurred by an agency or 21
Minister in giving access to the document.'. 22
s 66 105 s 67
Freedom of Information and Other Legislation
Amendment Bill 2005
Part 3 Amendment of Lotteries Act 1
1997 2
Clause 66 Act amended in pt 3 3
This part amends the Lotteries Act 1997. 4
Clause 67 Insertion of new s 225A 5
After section 225-- 6
insert-- 7
`225A Golden Casket Lottery Corporation Limited 8
exemption from application of Freedom of 9
Information Act 1992 10
`(1) The Freedom of Information Act 1992 does not apply to a 11
document received or brought into existence by the Golden 12
Casket Lottery Corporation Limited ACN 078 785 449 (the 13
corporation) in carrying out its excluded activities. 14
`(2) For subsection (3), definition excluded activities, 15
paragraph (a), a regulation may declare the activities of the 16
corporation that are taken to be, or are taken not to be, 17
activities conducted on a commercial basis. 18
`(3) In this section-- 19
excluded activities means-- 20
(a) activities conducted on a commercial basis; or 21
(b) community service obligations, within the meaning of 22
the Government Owned Corporations Act 1993, that are 23
prescribed under a regulation.'. 24
s 68 106 s 71
Freedom of Information and Other Legislation
Amendment Bill 2005
Part 4 Amendment of Public Records 1
Act 2002 2
Clause 68 Act amended in pt 4 3
This part amends the Public Records Act 2002. 4
Clause 69 Amendment of s 16 (Meaning of restricted access period) 5
Section 16(4)(b), after `42'-- 6
insert-- 7
`, 42A'. 8
Clause 70 Amendment of s 18 (Public access to public records) 9
(1) Section 18(5)(a), before `of the FOI Act'-- 10
insert-- 11
`or 42A'. 12
(2) Section 18(5)(a)(iii), `and'-- 13
omit, insert-- 14
`or'. 15
(3) Section 18(5)(a)-- 16
insert-- 17
`(iv) damage the security of the Commonwealth or a 18
State; and'. 19
Part 5 Amendment of Public Sector 20
Ethics Act 1994 21
Clause 71 Act amended in pt 5 22
This part amends the Public Sector Ethics Act 1994. 23
s 72 107 s 74
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 72 Amendment of s 28 (Functions of integrity 1
commissioner) 2
Section 28-- 3
insert-- 4
`(2) For subsection (1)(b), advice on an issue about a person may 5
only be given if the person is or has been a designated 6
person.'. 7
Clause 73 Amendment of s 33 (Secrecy) 8
(1) Section 33(1) and (3), `conflict of interest issue about 9
anyone'-- 10
omit, insert-- 11
`relevant issue about another person'. 12
(2) Section 33-- 13
insert-- 14
`(4) In this section-- 15
relevant issue means-- 16
(a) an ethics or integrity issue; or 17
(b) a conflict of interest issue.'. 18
Clause 74 Insertion of new ss 33A and 33B 19
After section 33-- 20
insert-- 21
`33A Freedom of Information Act does not apply 22
`(1) If advice is sought on an issue about a person under 23
section 28(1)(b), the Freedom of Information Act 1992 does 24
not apply to a document received or brought into existence by 25
the integrity commissioner in relation to the advice. 26
`(2) If advice about a conflict of interest issue is sought under 27
section 30, the Freedom of Information Act 1992 does not 28
apply to a document received or brought into existence by the 29
s 75 108 s 75
Freedom of Information and Other Legislation
Amendment Bill 2005
integrity commissioner in relation to the conflict of interest 1
issue. 2
`33B Authorisation of particular disclosures--ethics or 3
integrity issue 4
`(1) A relevant document about an ethics or integrity issue may be 5
disclosed under subsections (2) and (3). 6
`(2) A person who is or has been a designated person to whom a 7
relevant document relates may disclose the document. 8
`(3) The integrity commissioner may disclose a relevant document 9
to the person who is or has been the designated person to 10
whom the relevant document relates. 11
`(4) In this section-- 12
designated person to whom a relevant document relates 13
means the designated person involved in an ethics or integrity 14
issue and to whom the relevant document relates. 15
relevant document, for an ethics or integrity issue, means a 16
document received or brought into existence by the integrity 17
commissioner in relation to advice sought under 18
section 28(1)(b). 19
Clause 75 Amendment of s 34 (Authorisation of particular 20
disclosures) 21
(1) Section 34, heading-- 22
omit, insert-- 23
`34 Authorisation of particular disclosures--conflict of 24
interest issue'. 25
(2) Section 34(9), definition designated person to whom the 26
relevant documents relate-- 27
omit, insert-- 28
`designated person to whom a relevant document relates 29
means the designated person involved in a conflict of interest 30
issue and to whom the relevant document relates.'. 31
s 76 109 s 79
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 76 Amendment of schedule (Dictionary) 1
Schedule-- 2
insert-- 3
`ethics or integrity issue means an issue concerning ethics or 4
integrity in relation to which advice is sought under 5
section 28(1)(b).'. 6
Part 6 Amendment of Public Service 7
Act 1996 8
Clause 77 Act amended in pt 6 9
This part amends the Public Service Act 1996. 10
Clause 78 Insertion of new pt 11, div 4 11
After section 146-- 12
insert-- 13
`Division 4 Transitional provision for Freedom 14
of Information and Other Legislation 15
Amendment Act 2005 16
`147 Amendment of regulation by Freedom of Information 17
and Other Legislation Amendment Act 2005 does 18
not affect powers of Governor in Council 19
`The amendment of the Public Service Regulation 1997 by the 20
Freedom of Information and Other Legislation Amendment 21
Act 2005 does not affect the power of the Governor in Council 22
to further amend the regulation or to repeal it.'. 23
Clause 79 Amendment of sch 1 (Public service offices and their 24
heads) 25
Schedule 1-- 26
s 80 110 s 82
Freedom of Information and Other Legislation
Amendment Bill 2005
insert-- 1
`8A Office of the Information Information commissioner'.
Commissioner
Part 7 Amendment of Public Service 2
Regulation 1997 3
Clause 80 Regulation amended in pt 7 4
This part amends the Public Service Regulation 1997. 5
Clause 81 Omission of s 30 (Declared government entity and 6
declared public sector unit--Act, ss 20 and 21) 7
Section 30-- 8
omit. 9
Chapter 3 Other Amendments 10
Part 1 Amendment of Legal 11
Profession Act 2004 12
Clause 82 Act amended in pt 1 13
This part amends the Legal Profession Act 2004. 14
s 83 111 s 86
Freedom of Information and Other Legislation
Amendment Bill 2005
Clause 83 Amendment of s 281 (Orders to be filed in Supreme Court 1
and information notices to be given to parties etc.) 2
Section 281(1)-- 3
omit, insert-- 4
`(1) This section applies to the Brisbane registrar after the tribunal 5
makes-- 6
(a) an order under section 280 or 286 or part 6112 in relation 7
to a discipline application; or 8
(b) an order under section 293113 in relation to a discipline 9
application that the tribunal dealt with on an appeal from 10
the committee.'. 11
Clause 84 Amendment of s 293 (Appeal to tribunal against 12
committee's decision) 13
Section 293(3), after `an order'-- 14
insert-- 15
`, including an order for costs,'. 16
Clause 85 Amendment of s 470 (Conduct of committee for hearing 17
and deciding discipline applications) 18
Section 470(3)-- 19
omit, insert-- 20
`(3) The committee may issue particular directions for a hearing. 21
`(4) Despite section 469(2), the committee may be constituted by 22
the chairperson or deputy chairperson of the committee for the 23
purpose of issuing particular directions for a hearing.'. 24
Clause 86 Amendment of ch 8, pt 5, hdg 25
Chapter 8, part 5, heading, after `provisions'-- 26
112 Section 280 (Decisions of tribunal about an Australian legal practitioner) or
286 (Costs) or part 6 (Compensation orders)
113 Section 293 (Appeal to tribunal against committee's decision)
s 87 112 s 88
Freedom of Information and Other Legislation
Amendment Bill 2005
insert-- 1
`for Legal Profession Act 2004'. 2
Clause 87 Replacement of s 616 (Records of Solicitors' Board and 3
Barristers' Board) 4
Section 616-- 5
omit, insert-- 6
`616 Records of Solicitors' Board and Barristers' Board 7
`(1) The Legal Practitioners Admissions Board has the custody 8
and control of the records of the previous Solicitors' Board 9
and Barristers' Board. 10
`(2) The records may be given to the law society in its role of 11
providing administrative support to the Legal Practitioners 12
Admissions Board.'. 13
Clause 88 Insertion of ch 8, pt 6 14
Chapter 8-- 15
insert-- 16
`Part 6 Transitional provision for 17
Freedom of Information and 18
Other Legislation Amendment 19
Act 2005 20
`644 Amendment of regulation does not affect powers of 21
Governor in Council 22
`The amendment of the Legal Profession Regulation 2004 by 23
the Freedom of Information and Other Legislation 24
Amendment Act 2005 does not affect the power of the 25
Governor in Council to further amend the regulation or to 26
repeal it.'. 27
s 89 113 s 94
Freedom of Information and Other Legislation
Amendment Bill 2005
Part 2 Amendment of Legal 1
Profession Regulation 2004 2
Clause 89 Regulation amended in pt 2 3
This part amends the Legal Profession Regulation 2004. 4
Clause 90 Omission of ss 33 and 34 5
Sections 33 and 34-- 6
omit. 7
Part 3 Amendment of Standard Time 8
Act 1894 9
Clause 91 Act amended in pt 3 10
This part amends the Standard Time Act 1894. 11
Clause 92 Amendment of title 12
Title, `in the colony of Queensland'-- 13
omit. 14
Clause 93 Omission of preamble 15
Preamble-- 16
omit. 17
Clause 94 Replacement of s 3 (The time of the 150th meridian to be 18
standard time) 19
Section 3-- 20
omit, insert-- 21
s 95 114 s 95
Freedom of Information and Other Legislation
Amendment Bill 2005
`3 Standard time 1
`(1) Standard time in Queensland is 10 hours in advance of 2
Co-ordinated Universal Time. 3
`(2) In this section-- 4
Co-ordinated Universal Time means Co-ordinated Universal 5
Time (UTC) as determined by the International Bureau of 6
Weights and Measures and maintained under the National 7
Measurement Act 1960 (Cwlth), section 8AA.'. 8
Clause 95 Insertion of new s 5 9
After section 4-- 10
insert-- 11
`5 Transitional provision for Freedom of Information 12
and Other Legislation Amendment Act 2005 13
`Section 3, as inserted by the Freedom of Information and 14
Other Legislation Amendment Act 2005, (new section 3) 15
applies to an instrument even though it was made before the 16
commencement of new section 3.'. 17
© State of Queensland 2005
AMENDMENTS TO BILL
1
Freedom of Information and Other Legislation
Amendment Bill 2005
Freedom of Information and Other
Legislation Amendment Bill 2005
Amendments agreed to during Consideration
1 Clause 61--
At page 99, lines 9 to 24--
omit, insert--
` `(2) Section 11 applies in relation to the application and the
preliminary assessment notice must--
(a) state the agency or Minister is not satisfied the applicant
is the holder of a concession card; and
(b) give the reasons the agency or Minister is not satisfied.'.
2 After clause 86--
At page 112, after line 2--
insert--
`86A Amendment of s 610 (Continuation of rules of the law
society)
`(1) Section 610(4), after `under section'--
insert--
`595 or'.
`(2) Section 610(7), `1 year'--
omit, insert--
`2 years'.'.
© State of Queensland 2005
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