Freedom of information and privacy in Australia : information access 2.0 [2nd edition.] 9780409339123, 0409339121

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This book is dedicated to my parents, Ian and Mary, my husband, Bill, and my sons, Andrew and James.

Freedom of Information and Privacy in Australia Information Access 2.0

Second Edition Moira Paterson BEc (Mon), LLB (Hons) (Melb), LLM (Lond), GCHE (Mon), PhD (Mon) Associate Professor, Faculty of Law, Monash University

LexisNexis Butterworths Australia 2015

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Paterson, Moira. Freedom of information and privacy in Australia: information access 2.0. Second edition. 9780409339116 (hbk). 9780409339123 (ebk). Includes index. Privacy, Right of — Australia. Freedom of information — Australia. Disclosure of information — Law and legislation — Australia. 342.940858.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2005 (reprinted 2009). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Futura and Sabon. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface The past decade has seen many important changes to both freedom of information (FOI) and privacy laws and to the contextual factors that frame the Australian legal landscape governing information access. The Australian FOI landscape now includes a modified first generation Victorian FOI law and second generation Commonwealth and New South Wales FOI laws. The latter contain a number of valuable new features, including more clearly pro-disclosure objectives and a welcome shift towards proactive disclosure of information. They are also based on oversight and review mechanisms by Commissioners who exercise an active championship and guidance role. However, at the time of publication the fate of the Office of the Australian Information Commissioner remains in the balance; the Commonwealth Government has announced its intention to abolish the office as a budget savings measure but has been unable to secure the passage of the legislation to give effect to its announcement. The new landscape also features an amended Commonwealth Privacy Act and a new Victorian Privacy and Data Protection Act, which combines information privacy and data security within a single regime. However, threats to privacy have continued to escalate, with pressures from developments in information technologies and measures to address terrorism concerns. Freedom of Information and Privacy in Australia: Information Access 2.0 provides a comprehensive analysis of the current state of FOI and privacy laws in Australia, drawing on my research at Monash University. It also draws on the insights acquired during my memberships of the Commonwealth Privacy Advisory Committee, the Advisory Committees to the Australian Law Reform Commission in relation to its reviews of the Privacy Act and Secrecy Laws and the Consultative Committee to the Victorian Law Reform Commission in

relation to its Surveillance in Public Places inquiry. The main focus of the book is on Commonwealth, New South Wales and Victorian laws, but it also briefly summarises the equivalent regimes in other parts of Australia. I would like to thank Hayley Moore for her confidence in commissioning this book and Clive Wilson for his assistance in adding to the clarity of the earlier chapters. I would also like to thank the team at LexisNexis Butterworths, and especially Georgia O’Neill, for their invaluable assistance in preparing it for publication. More generally, I would like to thank the many people who have developed and maintained my interest in the fields of FOI and privacy law, including the many academics and practitioners whose books and articles are referred to in this book and the many students who have participated in my Monash Masters units, ‘Principles of Privacy and Freedom of Information’ and ‘Privacy and Surveillance: Law, Policy and Governance’. Finally, I would like to express special thanks to my father, Ian Thompson, former Deputy President of the Commonwealth Administrative Tribunal, for his inspiration and encouragement of my interest in administrative law. Moira Paterson June 2015

Table of Cases Italicised references are to Appendix pages; all other references are to paragraphs

A A and Department of Health, Housing and Services, Re (1998) .… 3.95 A and Health Commission, Re (1985) .… 6.38 A v Hayden (1984) .… 7.85 A v Local Council [2002] .… 2.155 Aarons and Australian Archives, Re (1986) .… 6.127, 8.158 AB v Department of Education and Early Childhood Development (General) [2011] .… 7.98 Accident Compensation Commission v Croom [1991] .… 2.9, 6.59, 8.64, 8.70 Actors’ Equity Association of Australia and Australian Broadcasting Tribunal, Re (1984) .… 8.92 — (No 2) (1985) .… 3.25, 6.62 Adams and Legal Aid Commission, Re (1987) .… 7.9 ADI Residents Action Group and Department of Finance and Administration [2001] .… 7.38 AEF v Northern Sydney Local Health District (No 2) [2012] .… 6.41, 6.43 AEZ v Commissioner of Police NSW Police Force [2013] .… 6.44 Ainsworth v Burden [2003] .… 3.146, 6.41

Akers v Victoria Police [2003] .… 7.100 Aldred and Department of Foreign Affairs and Trade, Re (1990) .… 8.6, 8.46, 8.52 Aldred and Department of Prime Minister and Cabinet, Re (1989) .… 8.120 Alister v R (1984) .… 8.23 Altaranesi v Administrative Decisions Tribunal [2012] .… 6.90 Altman and Family Court of Australia, Re (1992) .… 2.19, 8.61, 8.64, 8.119 Ambikapathy v Victorian Legal Aid [1999] .… 7.100 Amusement Machine Operators’ Association and Department of Sport and Recreation, Re (1988) .… 5.38 Anderson and Australian Federal Police, Re (1986) .… 3.24, 6.32, 8.54, 8.79, 8.81 Anderson and Department of Special Minister of State, Re (No 2) (1986) .… 8.16, 8.49, 8.68 Anderson v Charles Sturt University (2003) .… 3.198 Angel and Department of Arts, Heritage and Environment, Re (1985) . … 5.25, 5.27, 8.33 Anonymous and Department of Community Services 9 IPC13/R000324, 20 February 2014 .… 7.92 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] .… 6.52 Anti-Fluoridation Association of Victoria and Secretary, Department of Health, Re (1985) .… 3.85 Apache Energy Pty Ltd and Chief Executive Officer of the National Offshore Petroleum Safety and Environmental Management Authority and Lander & Rogers Lawyers [2012] .… 3.120

Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] .… 8.110 Arnold Bloch, Leibler and Commissioner of Taxation, Re (1984) .… 9.45, 9.47 — (No 2) (1985) .… 8.79 Arnold v Queensland (1987) .… 5.8, 5.15, 5.25, 8.6, 8.25, 8.30, 8.34, 8.37 Ascic v Australian Federal Police (1986) .… 5.17, 7.54 Asher and Department of State and Regional Development [2002] .… 6.24 Asher and Victorian Workcover Authority, Re (2002) .… 6.51, 6.62 Asher v Victorian Workcover Authority [2002] .… 7.46 Attorney-General v Cockroft (1986) .… 5.15 — v Guardian Newspapers (No 2) [1990] .… 7.78, 7.86 — v Jonathan Cape Ltd [1976] .… 7.125 — v Kearney (1985) .… 8.109 Attorney-General (NSW) V Kennedy Miller Television Pty Ltd (1998) . … 1.32 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) .… 1.5, 7.84, 7.86 Austin v Deputy Secretary, Attorney-General’s Department (1986) .… 2.9, 9.56 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) .… 1.98, 1.103 Australian Broadcasting Corporation (1991) .… 6.15 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) . … 1.20 Australian Doctors Fund Ltd v Commonwealth (1994) .… 7.7 Australian Federal Police v Propend Finance (1997) .… 8.108

Australian Institute of First Aid and Emergency Care Providers Pty Ltd and Victorian Workcover Authority, Re (2000) .… 6.51, 6.62 Australian Institute of First Aid v Workcover Authority [2000] .… 7.45, 7.46 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] .… 5.4, 5.15, 6.50 AZ and Australian Broadcasting Corporation [2014] .… 7.40 B B and Brisbane North Regional Health Authority, Re (1994) .… 7.76, 7.79, 7.80, 7.81, 7.87, 7.90 B v Statutory Entity [2003] .… 2.160, Baker v Campbell (1983) .… 1.41 Bankers’ Trust Australia and Ministry of Transport, Re (1989) .… 9.151 Barkhordar and ACT Schools Authority, Re (1987) .… 7.58 Barling and Medical Board of Victoria, Re; the Ombudsman (Party Joined) (1992) .… 7.100 Barnes and Commissioner for Corporate Affairs, Re (1985) .… 8.68, 8.76 Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs, Re [1998] .… 7.76 Bartlett and Department of Prime Minister and Cabinet, Re (1987) .… 5.28, 7.21 Batchelor and Department of Premier and Cabinet (1998) .… 8.50 Battin v University of New England [2013] .… 7.51 Beauchamp v Department of Education (General) [2006] .… 6.14 Beloff v Pressdram [1973] .… 7.84 Bennett v Director-General, National Parks and Wildlife Service [2000]

.… 6.21 — v President, Human Rights and Equal Opportunity Commission (2003) .… 1.106, 8.103 — v Vice Chancellor, University of New England [2002] .… 7.89 — v Vice Chancellor, University of New South Wales [2000] .… 7.18 Bergman v Department of Justice [2012] .… 1.160, 8.64 Berryman v Department of Education [1999] .… 8.70 Billinghurst and Department of Industry, Technology and Resources, Re (1986) .… 7.26 Birch and Attorney-General’s Department, Re (1994) .… 8.35 Birnbauer and Davies v Inner and Eastern Health Care Network [1999] .… 7.100 Birnbauer and Department of Industry, Technology and Resources, Re (1986) .… 8.47 — (No 2) (1986) .… 8.50 Birnbauer and Inner and Eastern Health Care Network, Re (1999) .… 7.75, 7.99 Birrell and Department of Premier and Cabinet, Re (No 1) (1986) .… 5.48 — (Nos 1 and 2) (1986) .… 5.30, 8.49 — (No 3) (1987) .… 8.100 Birrell and Victorian Economic Development Corporation, Re (1989) . … 3.15, 3.20 Birrell v Department of Premier and Cabinet (No 1) [1988] .… 8.47 Black v Hunter New England Area Health Service [2008] .… 7.93 Black v Hunter New England Local Health District & Dr Lattimore (No 2) [2012] .… 6.44 Bleicher v Australian Capital Territory Health Authority (1990) .…

3.17 Boehm and Commonwealth Ombudsman, Re (1985) .… 7.64 Boehm and Department of Industry, Technology and Commerce, Re (1985) .… 7.20 Booker and Department of Social Security, Re (1990) .… 7.7, 7.59 Bourke v Roads and Maritime Services [2012] .… 8.72 Bracken and Minister of State for Education and Youth Affairs, Re (1984) .… 8.34 Bracks and Vella v Melbourne Port Corporation [1998] .… 2.23 Bradford and Director of Family Services, Re (1998) .… 6.33 Breen v Williams (1996) .… 4.8 Brennan and Law Society of the Australian Capital Territory, Re (1984) .… 2.18 — (No 2) (1985) .… 7.63 British Steel Corporation v Granada Television Ltd [1981] .… 5.26 Brog and Department of Premier and Cabinet, Re (1989) .… 7.19, 7.20 Brown and Minister for Administrative Services, Re (1990) .… 6.55 Bryant v Deputy Commissioner of Taxation (1993) .… 11.26 Buggy v Victoria Police (1996) .… 8.64 Buhagiar and Victorian Police, Re (1989) .… 3.192 Burden v Ainsworth [2004] .… 3.146 Burke and Department of Families, Youth and Community Care, Re (1998) .… 6.23, 6.24 Burns and Australian National University, Re (1984) .… 7.13, 7.18 BY v Director-General, Attorney-General’s Department (No 2) [2003] . … 6.22 Byrne and Swan Hill Rural City Council, Re (2000) .… 6.54, 6.61,

7.45 Byrne v Swan Hill Rural City Council [2000] .… 6.65 C C v Department [2004] .… 2.155 — v Holland [2012] .… 1.101 Calgary Health Region, Orders, Re F2005–017 & H2005–001, 19 June 2006 .… 4.88 Callanan v Mcloughlan (General [2006] .… 4.89 Cameron and Joint Coal Board, Re [1988] .… 2.18 Cameron v Commissioner of Police New South Wales Police Force [2014] .… 7.10 Campbell v MGN [2004] .… 1.100 Canadian Pacific Tobacco Company Ltd v Stapleton (1952) .… 8.95 Cannon and Australian Quality Egg Farms Ltd, Re (1994) .… 6.55, 6.57, 6.58, 6.60 Caripis v Victoria Police (Health and Privacy) [2012] .… 1.110, 1.160 Carter and Department of Health (ACT), Re (1995) .… 3.9, 6.32 Carver and Department of Prime Minister and Cabinet, Re (1987) .… 3.53, 8.34, 8.62 Cashman and Partners v Secretary, Department of Human Services and Health (1995) .… 9.51 Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) .… 7.84, 7.86 Centrelink v Dykstra [2002] .… 8.74 Chan and Department of Immigration and Ethnic Affairs, Re (No 2) (1985) .… 9.53 Chandra and Minister for Immigration and Ethnic Affairs, Re (1984) .

… 3.6, 5.33, 6.22, 8.70 Chapman and Minister for Aboriginal and Torres Strait Islander Affairs, Re (1996) .… 5.28, 7.18, 7.31 Chapman v Commissioner of Police, New South Wales Police [2004] . … 5.15 Chief Commissioner of Police v McIntosh [2010] .… 3.94, 3.95 Chu v Telstra Corp Ltd (2005) 147 FCR 505; [2005] .… 3.85 Church of Scientology v Kaufman [1973] .… 7.84 City Parking Pty Ltd and City of Melbourne, Re (1996) .… 5.44, 7.105, 8.129 Clark and Department of Treasury and Finance, Re [2002] .… 8.116 Clark v Department of Treasury and Finance [2002] .… 8.32 Claude Reyes v Chile Case No.12.108 .… 1.28 Cleary and Department of Treasury, Re (1993) .… 7.20 Clifford and Transport Accident Commission, Re (1997) .… 8.111 Close and Australian National University, Re (1993) .… 3.165 Cockroft and Attorney-General’s Department, Re (1985) .… 6.58 Colakovski v Australian Telecommunications Corporation (1991) .… 5.33, 6.16, 6.17, 6.21, 6.25 Cole and Department of Justice, Re (1994) .… 8.50, 8.111 Colefax v Department of Education and Communities No 2 [2013] .… 3.91 Coleman and Director-General, Local Government Department, Pentland (1985) .… 7.3, 8.62 Collection Point Pty Ltd v Commissioner of Taxation [2013] .… 2.32 Collie and Deputy Commissioner of Taxation, Re (1997) .… 8.97 Collins v Minister for Immigration and Ethnic Affairs (1981) .… 9.56

Commissioner of Police v District Court of NSW (1993) .… 2.9 Commissioner of Police, New South Wales Police v EG; EG v Commissioner of Police, New South Wales Police (GD) [2004] .… 2.136 Commissioner of Police NSW Police Force v Camilleri (GD) [2012] .… 7.88, 7.91 Commissioner of Taxation v Swiss Aluminium (1986) .… 8.100 Commonwealth v Construction, Forestry, Mining and Energy Union (2000) .… 8.49 — v Hittich (1994) .… 8.17 — v John Fairfax and Sons Ltd (1980) .… 1.5, 7.18, 7.25, 7.82, 7.84 — v Northern Land Council (1993) .… 7.16, 7.18, 8.55 Complainant v Department Respondent [2003] .… 2.157, — v — [2004] .… 2.155, 2.161 — v Statutory Entity Respondent [2004] .… 2.160 Complainant AK v Statutory Authority [2008] .… 2.157 Complainant AQ v Contracted Service Provider to the Department [2010] .… 2.157 Connolly and Department of Finance, Re (1994) .… 5.17, 7.47, 7.48 Conway v Rimmer [1968] .… 7.19 Cornerstone Legal Pty Ltd and Australian Securities and Investments Commission [2013] .… 7.39 Corrs Chambers Westgarth and Commissioner for Taxation, Re (1998) .… 8.97 Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) . … 7.76, 7.84, 7.86, 7.87, 8.159 Cosco Holdings Pty Limited and Department of Treasury, Re (1988) . … 8.31, 9.49, 9.50, 9.52

Coulston v Office of Public Prosecutions [2001] .… 3.31 Cousins v Ambulance Service of New South Wales [2014] .… 5.38 Cox and Department of Defence, Re (1990) .… 3.165, 3.186, 3.192 Crawley and Centrelink [2006] .… 7.54 Cremmen and Frankston Hospital, Re (1989) .… 5.39, 6.23 Crewdson v Central Sydney AHS [2002] .… 3.198 Cristavo and Secretary, Department of Social Security, Re (1998) .… 33.84, 3.85 Croom and Accident Compensation Commission, Re (1989) .… 8.68 Croom v Accident Compensation Commission (1989) .… 8.65 Cyclists Rights Action Group and Department of Transport (1994) .… 8.34 D D v National Society for Prevention of Cruelty to Children [1978] .… 8.69 ‘D’ and Wentworthville Leagues Club [2011] .… 10.11 Dale and Australian Federal Police, Re (1997) .… 8.69 Darwish v Deakin University [2002] .… 6.24 Dawson v Commissioner, Health Care Complaints Commission [1999] .… 6.18, 6.22 Day v Collector of Customs (1995) .… 9.45, 9.47 De Souza-Daw and Gippsland Institute of Advanced Education, Re (1987) .… 3.15 Debono v Department of Justice -FOI Officer (General) [2008] .… 7.100 Department of Agriculture and Rural Affairs v Binnie [1989] .… 8.73, 8.75

Department of Air Force v Rose (1976) .… 2.9 Department of Community Services v Jephcott (1987) .… 8.65, 8.67, 8.68 Department of Education & Training v GA (No 3) [2004] .… 10.65 Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd [2010] .… 3.66 Department of Health v Jephcott (1985) .… 5.35, 7.79, 8.71, 8.89 Department of Industrial Relations v Burchill (1991) .… 5.15 Department of Social Security v Dyrenfurth (1988) .… 7.58 Department of the Premier and Cabinet v Birrell [1990] .… 8.100 — v Hulls [1999] .… 5.44, 8.100, 8.101 Director General Department of Education and Training v MT (GD) [2005] .… 6.84 Director-General, Department of Education and Training v Mullett [2002] .… 6.14, 7.100 — v Mullett and Randazzo (No 2) [2002] .… 5.15, 7.57 Director of Public Prosecutions (Vic) v Smith [1991] .… 5.31, 5.45, 6.17 Dixon v Alpine SC [2002] .… 8.129, 8.130 DO v University of NSW [2002] .… 2.138 Dobbings and Shire of Murrindindi, Re (1997) .… 7.105 Doe v Australian Broadcasting Commission [2007] .… 1.103 Dunn and Secretary, Department of Family and Community Services, Re [2003] .… 3.162 Durant v Financial Services Authority [2003]; [2004] .… 12.36 Dyki and Commissioner of Taxation, Re (1990) .… 7.58 Dykstra and Centrelink, Re [2003] .… 8.74

Dyrenfurth and Department of Social Security, Re (1987) .… 5.17, 7.58 DZ v Commissioner of Police, New South Wales Police Service [2002] . … 8.61, 8.68 E Easdown and Director of Public Prosecutions, Re (No 1) (1987) .… 6.21, 6.24, 8.101 Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (1993) .… 1.26, 7.18 Edelsten and Australian Federal Police, Re (1985) .… 3.25, 5.25, 8.62, 9.42 Edwards v Museum Victoria (General) [2011] .… 3.12 Egan v Willis (1998) .… 1.17 Environment Centre NT Inc and Department of Environment, Sport and Territories, Re (1994) .… 8.15 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) .… 1.41, 8.106 Esso v Plowman (1995) .… 7.82 Evans and Ministry for the Arts, Re (1986) .… 7.30 Ex-Christmas Islanders Association Inc and Department of Transport and Regional Development, Re (2002) .… 9.54 F F and Health Department, Re (1988) .… 6.16 Fallon Group Pty Ltd and Federal Commissioner of Taxation, Re (1995) .… 8.97 FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) .… 1.5 Fewster and Department of Prime Minister and Cabinet, Re (No 2)

(1987) .… 5.7, 7.16, 7.21 FH v New South Wales Department of Corrective Services [2003] .… 2.139, Flack v Commissioner of Police, New South Wales [2011] . … 5.15 FM v Vice Chancellor, Macquarie University [2003] .… 2.144, Fogarty and Office of Corrections and Health Department, Re (1989) .… 7.23 Formosa v Secretary, Department of Social Security (1988) .… 10.26 Forrest and Department of Social Security, Re (1991) .… 8.97 Forrest and DSS and Wilks, Re (1991) .… 6.32 Foster v Department of Health (Review and Regulation) [2013] .… 3.87 Fryar and Australian Federal Police, Re (1988) .… 7.54, 7.65 G GA v Department of Education and Training and NSW Police (GD) [2003] .… 2.136 GA v Department of Human Services (General) [2010] .… 3.56 Gao v Federal Privacy Commissioner (2002) .… 10.9 Garbutt and Victorian Plantations Corporation, Re (1998) .… 2.23 Gartside v Outram (1856) .… 7.84 Gaskin v United Kingdom (1989) .… 1.28 General Manager, WorkCover Authority of NSW v Law Society NSW (2006) .… 7.21, 7.25 Gersten v Minister for Immigration and Multicultural Affairs (2000) . … 8.15 Gill and Department of Industry, Technology and Resources, Re (1985) .… 6.54 Giller v Procopets (2008) .… 1.103

Gillick v West Norfolk and Wisebeck Area Health Authority [1986] .… Gilling v General Manager, Hawkesbury City Council [1999] .… 5.38 GL v Director-General, Department of Education and Training [2003] . … 2.136 Glascott v Victoria Police (Review and Regulation) [2014] .… 7.95 Gold and Australian Federal Police, Re (1994) .… 8.69, 8.70 Gold and National Crime Authority, Re (1994) .… 8.70 Gordon v Mornington SC (General) [2005] .… 3.29 GR v Department of Housing [2003] .… 1.156 Graham and Frankston Community Hospital, Re (1986) .… 5.45 Grant v Downs (1976) .… 8.106 Green and Australian and Overseas Telecommunications Corporation, Re (1992) .… 3.9 Green v Australian and Overseas Development Corporation (1992) .… 5.37 Grosse v Purvis [2003] .… 1.103 Guerra v Italy (1998) .… 1.28 Guide Dog Owners and Friends Association and Commissioner for Corporate Affairs, Re (1988) .… 3.15 Guide Dog Owners and Friends Association and Department of Community Services, Re (1985) .… 3.24, 9.48 Gunawan and Directorate of School Education, Re (1994) .… 8.111 Gunawan v Department of Education [1999] .… 7.100 Guy and Department of Transport, Re (1987) .… 8.19, 8.25 GV v Office of the Director of Public Prosecutions [2003] .… 2.136 H

Hall v Department of Premier and Cabinet [2012] .… 6.55, 8.98 Halliday and Office of Fair Trading, Re (1995) .… 5.45 Hamblin v Duffy (No 2) (1981) .… 1.5 Hanbury-Sparrow and Department of Foreign Affairs, Re (1997) .… 3.9 Haneef and Australian Federal Police and Commonwealth Director of Public Prosecutions [2010] .… 8.108 Harris v Australian Broadcasting Corporation (1983) .… 5.17, 5.25, 7.6, 7.14, 7.20, 7.30, 7.38, 8.54 Hart and Deputy Commissioner of Taxation, Re (2002) .… 7.47, 8.97 Hayes and Department of Social Security, Re (1996) .… 8.68 Head v NSW Police [2010] .… 7.93 Heaney and Public Service Board, Re (1984) .… 5.30 Heatley v Tasmanian Racing and Gaming Commission (1977) .… 1.5 Herald and Weekly Times and Secretary, Department of Finance and Administration (2000) .… 3.107 Herald and Weekly Times Pty Ltd v The Office of the Premier (General) [2012] .… 2.46, 3.20 Hinds and Australian National University, Re [2012] .… 3.165 Hittich and Department of Health, Housing and Community Service (1993) .… 6.12 Hocking and Department of Defence, Re (1987) .… 8.8 Hocknell and Australian Telecommunications Commission, Re (1991) . … 7.59 Holbrook v Department of Natural Resources and Environment (1997) .… 7.45 Holdings Ltd v Burton (2002) .… 7.83 Horesh and Ministry of Education, Re (1986) .… 3.15

Hoser and Victoria Police, Re (No 2) (1990) .… 3.15 Hoskin and Department of Education and Training, Re [2003] .… 7.23, 7.95, 9.158 Hosking v Runting [2004] .… 1.101 Hounslow and Department of Immigration and Ethnic Affairs, Re (1985) .… 9.48, 9.50 Howard and the Treasurer, Re (1985) .… 7.15 Hulls and Department of Treasury and Finance, Re [1998] .… 5.44 Hulls and Victorian Casino and Gaming Authority, Re (1998) .… 7.23, 7.32 Humane Society International Inc v National Parks and Wildlife Service [2000] .… 6.21 Hurst v Wagga Wagga City Council [2011] .… 5.22 Hutchinson and Department of Human Services, Re (1997) .… 3.56 I Imerman v Tchenguiz [2010] .… 1.100 Independent Management Resources Pty Ltd v Brown [1987] .… 7.77 Ingram v Sutherland Shire Council [2000] .… 8.72 Initial Services Ltd v Putterill [1968] .… 7.86 J J v Two Individuals [2003] .… 1.114 Jacobs and Department of Defence, Re (1988) .… 3.164, 3.166, 3.167 — (No 2) (1988) .… 9.49 James and Australian National University, Re (1984) .… 5.17, 7.6, 7.7, 7.33, 7.47, 7.61 JCL v Victoria Police [2012] .… 8.64

JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 . … 7.10 Johansen v City Mutual Life Assurance Society Ltd (1904) .… 5.27 Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) (2000) .… 3.13 Joint Coal Board v Cameron (1989) .… 2.18, 7.80 Jorgensen v Australian Securities & Investments Commission [2004] . … 8.106 Judicial Watch v FBI (2001) .… 8.91 — v Reno (2001) .… 8.91 K K and Director-General of Social Security, Re (1984) .… 3.136, 6.36, 6.39 Kamminga and Australian National University, Re (1992) .… 5.8, 5.32, 7.21, 7.76 Kavvadias v Commonwealth Ombudsman (No 1) (1984) .… 5.8, 8.100 — v — (No 2) (1984) .… 7.20 KD v Registrar, Medical Board [2004] .… 2.144, 2.145 KD v Registrar, NSW Medical Board [2004] .… 2.138, Keating v La Trobe University (General) [2011] .… 3.29 Kelly v Department of Treasury and Finance (No 2) (2002) .… 3.13 Keriakes v Chief Executive Officer, State Rail Authority [2003] .… 5.38 KJ v Wentworth Area Health Service [2004] .… 2.138, 2.145, 6.83, 6.84 Knight v Corrections Victoria [2010] .… 3.84 Knight and Medical Board of Victoria, Re (1991) .… 8.70 Knight v Secretary, Department of Justice [2003] .… 9.158

KO v Commissioner of Police, NSW Police [2004] .… 2.136 Kotsiras and Department of Premier and Cabinet, Re [2003] .… 3.56 Kracke v Mental Health Review Board [2009] .… 1.110 KT v Sydney Local Health Network [2011] .… 10.65 Kwok v Minister for Immigration and Multicultural Affairs (2001) .… 8.96 L Landsberger and Victoria Police, Re (1989) .… 7.100 Lange v Australian Broadcasting Corporation (1997) .… 5.44, 8.103 Lansing Linde Ltd v Kerr (1990) .… 6.42 Lapidos and Office of Corrections, Re (No 3) (1990) .… 5.38 Lapidos and Ombudsman, Re (No 2) .… 7.32 Latham v Director-General, Department of Community Services [2000] .… 7.2 Lawless and Secretary, Law Department, Re (1985) .… 5.30, 5.38, 6.24, 8.74, 8.80 LB v Lattimore [2010] .… 10.78 Leverett and Australian Telecommunications Commission, Re (1985) . … 3.165 Lianos and Secretary, Department of Social Security, Re (1985) .… 5.30, 6.22, 7.16, 7.19, 7.20, 7.24 — (No 2) (1985) .… 5.30, 9.49, 9.51 Liddell and Department of Social Security, Re (1989) .… 8.70 LJXW and Australian Federal Police and QKDP (Party Joined) [2011] . … 3.9 Lordsvale Finance Ltd and Department of Treasury, Re (1985) .… 3.6 — (No 4) (1986) .… 9.50

Loughnan v Altman (Principal Registrar of the Family Court of Australia) (1992) .… 2.19 M McCarthy and Australian Telecommunications Commission, Re (1987) .… 7.18 McDonald v NSW Police Service (2003) .… 8.111 McEneiry and Medical Board of Queensland, Re (1994) .… 8.64, 8.68 McIntosh and Department of Veterans’ Affairs, Re (1996) .… 3.24, 6.36 McIntosh v Department of Justice (General) [2009] .… 3.30 McIntosh v Department of Premier and Cabinet [2009] .… 5.29 McKenzie v Secretary to Department of Social Security (1986) .… 5.54, 8.64, 8.69, 8.70 McKinnon, Re (1995) .… 3.142 McKinnon and Secretary, Department of Health and Ageing, Re [2004] .… 8.46 McKinnon v Blacktown City Council [2012] .… 7.44 McKinnon v Secretary, Department of the Treasury (2006) .… 5.15, 12.4 McKinnon v Treasury (2008) 228 CLR 423; [2006] .… 7.22 McKnight and Australian Archives, Re (1992) .… 5.53, 8.11, 8.12, 8.13 McLennan v University of New England [2013] .… 6.24 McMillan v Commissioner of Police Force; Brady v Commissioner of Police NSW Police Force [2013] .… 7.91 Macquarie University v Howell (No 2) Howell [2009] .… 7.93 Maher and Attorney-General’s Department, Re (1985) .… 5.16, 8.9, 8.16, 8.31, 8.33

Mann v Carnell (1999) .… 8.113 — v Medical Practitioners Board of Vic [1997] .… 3.192 Mann and Australian Taxation Office, Re (1985) .… 3.12, 5.25 Mann and Capital Territory Health Commission, Re (1983) .… 3.15 — (No 2) (1983) .… 3.15 Mann and Department of Health, Re (ACT) (1991) .… 3.162 Mann and Federal Commissioner of Taxation, Re (1987) .… 8.97 Manners v Northern Victoria Irrigation Renewal Project (General) [2010] .… 6.53 Marke v Victoria Police (General) [2007] .… 8.106 Marple v Department of Agriculture (1995) .… 7.20 Marple and Department of Agriculture, Re (1995) .… 6.51, 7.45 Matthew v NSW Police Force [2013] .… 3.86 Matthews and Australians Securities and Investment Commission [2010] .… 3.53 Matthews and Department of Social Security, Re (1990) .… 8.74 Mauger v General Manager, Wingercarribee Shire Council [1999] .… 8.68 Mawkes v Department of Human Services [2001] .… 3.162, 9.155 Media Research Group v Department of Premier and Cabinet (GD) [2011] .… 6.55 Medical Practitioners Board of Victoria v Sifredi [2000] .… 7.100 Mees v University of Melbourne [2009] .… 7.101 Mickleberg and Australian Federal Police, Re (1984) .… 8.79 Midland Metals Overseas Limited and Collector of Customs and Pirelli Cables Australia Limited, Re (1991) .… 7.87

Mildenhall and Department of Premier and Cabinet, Re (No 1) (1995) . … 8.49 — (No 2) (1995) .… 3.15 Mildenhall and VicRoads, Re (1996) .… 7.23, 7.95 Mildenhall v Department of Treasury and Finance (1997) .… 8.50 Milliss and Australian Archives, Re (1996) .… 5.53 Milliss and National Archives of Australia, Re [2000] .… 8.11 Milthorpe and Mt Alexander Shire Council, Re (1997) .… 6.17 Minister for Immigration and Citizenship v Kumar (2009) .… 7.85 Miriani v Commissioner of NSW Police [2005] .… 3.86 MJB and Health Department, Re (1989) .… 7.26 Moloney and Department of Human Services, Re (2001) .… 7.23 Moloney v Department of Human Services (2001) .… 7.20 Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) .… 1.98 Morgan v Department of Human Services (General) [2008] .… 3.7, 3.12, 3.133, 5.38, 6.28 Morris and Australian Federal Police, Re (1995) .… 3.6 Mosley v News Group Newspapers Ltd [2008] .… 1.100 Munday and Commissioner for Housing, Re (1995) .… 6.32 Murphy and Australian Electoral Commission, Re (1994) .… 8.79 Murphy and Queensland Treasury, Re (1995) .… 8.74 Murray v Express Newspapers Plc [2008] .… 1.100 Murtagh and Commissioner of Taxation, Re (1984) .… 7.3, 7.66, 8.64, 9.42 N NAAO v Secretary, Department of Immigration and Multicultural

Affairs (2002) .… 8.96 Nasr v State of New South Wales [2007] .… 6.84 Nationwide News Pty Ltd v Wills (1992) .… 1.20 Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] .… 5.16, 7.44 Neary v Chief Executive, State Rail Authority [1999] .… 5.15, 5.33, 6.21, 6.51, 6.56, 6.61 Neeson v The Chief Executive Officer of Centrelink [2006] .… 3.185, 3.194 Newnham v Victoria Police Force (1997) .… 5.44 News Corporation Ltd and National Companies and Securities Commission (1984) .… 8.62 News Corporation Ltd v National Companies and Securities Commission (1984) .… 2.9, 6.14, 6.18, 8.56, 8.61, 8.62, 8.100 NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] .… 10.87 NLRB v Sears, Roebuch and Company (1975) .… 7.32 Noonan v Ambulance Victoria (Review and Regulation) [2014] .… 7.45, 7.47 O OA v New South wales Department of Housing [2005] .… 2.138 O’Brien v Department of Justice (General) [2010] .… 3.24 O’Brien v Komesaroff (1982) .… 7.77 O’Connor v State Superannuation Board of Victoria (1991) .… 5.32 O’Donovan and Attorney-General’s Department, Re (1985) .… 5.25, 8.10 O’Grady and Australian Federal Police, Re (1983) .… 3.15, 3.60

Olexander v Department of Premier and Cabinet [2002] .… 8.48 Oostermeyer and Alfred Hospital, Re (1998) .… 7.20,7.23, 8.109 Organon (Australia) and Department of Community Services and Health, Re (1987) .… 6.52, 6.55 Ormonde v National Parks and Wildlife Service (NSW) (No 2) [2004] . … 10.65 Osland v Department of Justice (General) [2005] .… 8.113 Osland v Secretary to the Department of Justice (2008) .… 8.111 O’Sullivan and Police Force of Victoria, Re (1986) .… 8.61 Owen and Health and Community Services, Re (1996) .… 5.45 P Page and Director-General of Social Security, Re (1984) .… 3.164 Page and Metropolitan Transit Authority, Re (1988) .… 5.33, 5.38, 6.21, 6.61, 8.108 Pallas v Roads Corporation (2013) .… 7.45 Parisi and Australian Federal Police, Re (1987) .… 8.33, 8.84 Parnell and Prime Minister of Australia [2011] .… 2.40 Paterson and Australian Bureau of Statistics, Re (1994) .… 3.107 Paterson and Department of Arts, Heritage and Environment, Re (No 2) (1985) .… 9.53 Patsalis v Commissioner of Police, NSW Police Service [2003] .… 3.86 Patterson and Department of Home Affairs and Environment, Re (1985) .… 9.48 PC v University of New South Wales (No 2) [2005] .… 10.65 Penhalluriak v Department of Labour and Industry (1983) .… 3.31, 5.33

Pepperell and Ministry of Housing and Construction, Re (1989) .… 7.97 Perry and Victorian Police Force, Re (1990) .… 8.34, 8.36 Pescott and Auditor-General of Victoria, Re (1987) .… 7.26 Pescott and Department of Conservation and Environment, Re (1991) . … 7.23 Peter Kabalan, Re (1993) .… 9.50 Peters and Department of Prime Minister and Cabinet, Re (1983) .… 5.25 Petroulias and Commissioner of Taxation [2006] .… 8.11, 8.66 Philip Morris Ltd and Department of Health and Ageing [2013] .… 3.89 Pope and Queensland Health, Re (1994) .… 6.18 Porter and Department of Community Services and Health, Re (1988) . … 5.47, 8.40, 8.46, 8.49 Pratt v Webster (1982) .… 8.90 Prescott and Auditor-General, Re (1987) .… 8.112 Price and Director of Public Prosecutions, Re (1997) .… 8.110 Prosser and Australian Telecommunications Corporation, Re (1989) . … 7.20 Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd, Re (1991) .… 6.55 — (No 2) (1991) .… 5.27, 7.63 Public Service Board of New South Wales v Osmond (1986) .… 1.5, 1.7, 1.31 Q QAI and Secretary, Department of Social Security, Re (1989) .… 3.165, 9.43

Queensland Community Newspapers Pty Ltd and Redland Shire Council, Re (1998) .… 6.58 R R v Donovan [1934] .… 6.44 — v Kelly; Victorian Public Service Board, Ex p [1985] .… 9.156 — v Lewes Justices; Secretary of State for Home Department, Ex p [1973] .… 8.69 — v Metropolitan Fair Rents Board; Canestra, Ex p [1961] .… 1.5 — v Tjanara Goreng-Goreng [2008] .… 1.106 — v Trade Practices Tribunal; Tasmanian Breweries Ltd, Ex p (1971) . … 5.19 — v Young (1999) .… 1.41 Rabel and Gas and Fuel Corporation of Victoria, Re (1989) .… 7.26 Rae and Department of Prime Minister and Cabinet, Re (1986) .… 5.30, 7.15, 7.16, 7.17, 7.21, 8.34, 8.49 Raethel v Director-General, Department of Education and Training [1999] .… 6.21 Ralkon Agricultural Company Pty Ltd and Aboriginal Development Commission, Re (1986) .… 6.58 Redfern and University of Canberra, Re (1995) .… 3.24, 7.54 Reith and Minister of State for Aboriginal Affairs, Re (1988) .… 3.42 Resch and Department of Veterans’ Affairs, Re (1986) .… 3.164, 3.165, 3.198 Richards v Commissioner, Department of Corrective Services [2011] . … 6.11 Richardson and Commissioner of Corporate Affairs, Re (1987) .… 8.69

Ricketson and Royal Women’s Hospital, Re (1989) .… 6.17 Ritson v NSW Police Force [2010] .… 7.93 Robertson v Minister of Pensions [1949] .… 11.26 Robinson and Department of Employment and Workplace Relations, Re (2002) .… 3.60 Robinson v Director-General, Department of Health [2002] .… 7.63 Roy v Commissioner of Police Force [2012] .… 8.61 Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] .… 1.41 Rummery and Federal Privacy Commissioner and Department of Justice and Community Safety, Re [2004] .… 10.11 Russell Island Development Association Inc and Department of Primary Industry and Energy, Re (1994) .… 3.9, 3.24, 3.53 Russo and Australian Securities Commission, Re (1992) .… 8.62, 8.80 Ryan v Department of Innovation, Industry and Regional Development (General) [2010] .… 6.63, 8.47 Ryder v Booth [1985] .… 5.25, 7.95, 7.99, 7.100, 7.101, 7.103 S S and Federal Commissioner of Taxation, Re (No 2) (1993) .… 8.82 Saggers v Environment Protection Authority [2014] .… 8.106 Said and J Dawkins, MP, Re (1993) .… 2.40, 3.17 Saleam v Commissioner of Police, NSW Police Service [2002] .… 8.65 Sankey v Whitlam (1978) .… 1.6, 1.41, 5.12, 5.19, 7.18 Saunders and Australian Federal Police, Re (2001); (2002) .… 11.32 Saxon and Australian Maritime Safety Authority, Re (1995) .… 6.58, 7.30 Scholes and Australian Federal Police, Re (1996) .… 7.62, 8.67

Schubert and Department of premier and Cabinet, Re (2001) .… 3.15 Scrivanich and Australian Taxation Office, Re (1983) .… 3.165 Scrivanich and Public Service Board, Re (1984) .… 7.16 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) .… 3.9, 5.15, 5.33, 5.37, 6.52, 6.53, 6.61, 7.61, 8.34, 9.55, 9.56 Secretary, Department of Treasury and Finance v Kelly (2001) .… 3.92, 3.95 Secretary, Department of Workplace Relations and Small Business v Small Business and Staff Development and Training Centre Pty Ltd (2001) .… 6.53, 6.55, 7.8, 7.38 Secretary of State for Defence v Guardian Newspapers Ltd [1985] .… 8.22 Secretary to the Department of Justice v Osland [2007] .… 5.46 Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] .… 10.38 Sharples and Queensland Police Service, Re (2001) .… 8.123 Shergold v Tanner (2002) .… 5.51 Sherrington and Merit Protection and Review Agency, Re (1996) .… 7.63 Shubert and Department of Premier and Cabinet, Re (2001) .… 3.62 Shulver and Victoria Police Force, Re (1995) .… 8.61 Sime and Minister for Immigration and Ethnic Affairs, Re (1995) .… 3.192 Simmons and Secretary, Department of Defence (2000) .… 3.84 Simos v Wilkins (1996) .… 8.54 Simpson v Director-General, Department of Education and Training [2000] .… 5.16 Sinclair and Secretary, Department of Social Security, Re (1985) .…

8.65, 8.69 Slater and Cox, Re (1988) .… 8.8, 8.11, 8.158 Slezankiewcz and Australian and Overseas Telecommunications Corporation (1992) .… 3.156 Smeaton v Accident Compensation Conciliation Service (General) [2010] .… 3.199 Smeaton v Victorian Workcover Authority (General) [2010]; [2012] .… 2.32 Smith, Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) .… 7.80, 7.83, 7.84, 8.33 Sobh v Police Force of Victoria [1994] .… 5.16, 8.60 Spencer v Commonwealth of Australia (2012) .… 1.41 SRB and Department of Health, Housing, Local Government and Community Services, Re (1994) .… 3.89 Staats and National Archives [2010] .… 6.127, 8.160 State of Queensland and Department of Aviation, Re (1986) .… 8.37 Stewart and Department of Tourism, Sport and the Commonwealth Games, Re [2003] .… 3.56, 6.54, 7.46 Stewart and Department of Transport, Re (1993) .… 6.15 Stewart and Victoria Police, Re (1987) .… 6.23 Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] .… 6.69, 9.151 Strang and Department of Immigration and Ethnic Affairs and Siddha Yoga Foundation, Re (1994) .… 6.32 Subramanian and Refugee Review Tribunal, Re (1997) .… 7.27, 7.66 Sullivan and Department of Industry, Science and Technology, Re (1997) .… 7.82, 8.112

— (No 2) (1997) .… 7.87 Sullivan and Department of Social Security, Re (1989) .… 8.70 Sutcliffe and Victoria Police, Re (1989) .… 7.100 SY v Northern Sydney Local Health Network (formerly Northern Sydney Central Coast Area Health Service) [2011] .… 10.65 T Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] .… 3.13, 8.119 Targridge Pty Ltd and Road Traffic Authority, Re (1988) .… 5.39, 6.15, 6.16 Taylor v Chief Inspector, RSPCA [1999] .… 8.65, 8.88 — v WorkCover Authority [2003] .… 7.87 TB v South Eastern Sydney Illawarra Area Health Service [2011] .… 1.157 Tee v Department of Planning & Community Development (Review and Regulation) [2013] .… 7.20 Telstra Australia Ltd and Australian Competition and Consumer Commission, Re [2000] .… 7.63 The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] .… 3.95 Thies and Department of Aviation, Re (1986) .… 5.17, 8.84 Thomas and Royal Women’s Hospital, Re (1988) .… 5.44, 6.16 Throssell and Australian Archives, Re (1987) .… 7.125 Thwaites and Department of Health and Community Services, Re (1995) .… 7.9, 7.30, 7.95, 8.50 Thwaites and Department of Human Services, Re (1998) .… 7.26, 7.105 Thwaites and Directorate of School Education, Re (1998) .… 8.111

Thwaites and Metropolitan Ambulance Service, Re (1996) .… 5.44, 6.51, 7.97 Timmins and National Media Liaison Service [1986] .… 6.22 Toomer and Department of Primary Industries and Energy, Re (1991) . … 9.52 Toren and Secretary, Department of Immigration and Ethnic Affairs, Re (1995) .… 7.80 Trade Practices Commission v Sterling (1978) .… 8.108 Trotter v Department of Justice [2003] .… 5.45 Tunchon v Commissioner of Police, New South Wales Police Service [2000] .… 2.9, 7.14, 7.21 Tziolas v NSW Department of Education and Communities [2012] .… 3.120, 8.122 U University of Melbourne v Robinson [1993] .… 6.15, 6.18, 6.24 V Veale and Town of Bassendean, Re [1994] .… 6.12 Vice Chancellor, Macquarie University v FM [2003]; [2005] .… 2.136, 10.64, 10.65 Victoria Park Racing and Recreation Grounds Co Limited v Taylor (1937) .… 1.98 Victoria Police v Burton [1999] .… 3.87 Victoria Police v Marke [2008] .… 3.9, 3.12, 5.38, 6.27 Victorian Public Service Board v Wright (1986) .… 5.48, 9.156 Vidal-Hall v Google Inc [2014] .… 1.100 VXV and DSS, Re (1992) .… 6.25, 6.32

W W Wallace and Director of Public Prosecutions [2003] .… 8.107 Wallace and Merit Review Protection Authority, Re (1995) .… 7.58 Walton and Ministry of Education, Re (1990) .… 5.25, 7.6 Wang and Department of Employment, Education and Training, Re (1988) .… 8.12 Wanless Wastecorp Pty Ltd and Cabooculture Shire Council [2003] .… 6.24 Ward and Secretary, Department of Industry and Commerce, Re (1983) .… 3.6 Ward and Victoria Police, Re (1986) .… 8.74 Warren and Department of Defence, Re (1993) .… 3.165 Washington Post Co v United States Department of Justice (1988) .… 8.76 Waterford and Department of Treasury, Re (1983) .… 5.39, 9.43 — (No 1) (1984) .… 7.30 — (No 2) (1985) .… 7.6, 7.10, 7.19 Waterford and the Treasurer of the Commonwealth, Re (1985) .… 7.30 Waterford v Commonwealth (1987) .… 5.35, 8.110 Watkins v Chief Executive, Roads and Traffic Authority [2000] .… 7.89 Watson v South Australia [2010] .… 1.32 WBM v Chief Commissioner of Police [2010] .… 1.110 Weetangera Action Group and Department of Education and the Arts, Re (1994) .… 5.7 Weld-Blundell v Stephens [1919] .… 7.84

Wertheim and Department of Health, Re (1984) .… 3.15 Western Mining Corporation v Department of Conservation, Forests and Lands (1989) .… 7.20 Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) .… 7.86 Whitlam v Australian Consolidated Press Ltd (1985) .… 8.40 Williams and Marks, Re (1996) .… 2.18 Williams and Registrar, Federal Court of Australia, Re (1985) .… 3.9, 5.17, 5.37, 6.18 Wilson and Australian Federal Police, Re (1983) .… Wilson and Australian Postal Corporation, Re (1994) .… 7.59 Wilson and Department of Premier and Cabinet, Re (2001) .… 3.56 Wilson v Department of Education (1989) .… 7.21 Wingfoot Australia Partners Pty Ltd v Kocak (2013) .… 1.31, 1.34, 1.35 Wiseman and Defence Service Homes Corporation, Re (1987) .… 3.9 Wiseman and Department of Transport, Re (1984) .… 3.166, 3.192 Wittingslow Amusements Group Pty Ltd v Director-General of Environmental Protection Authority of New South Wales (1993) .… 6.58 WK v R [2011] .… 1.110 Woods v Chief Executive Officer, State Rail Authority [2002] .… 6.18, 7.58 Woodward and Ombudsman, Re (2001) .… 7.96 Wykanak v Director General, Department of Local Government [2002] .… 10.65 Wyman v Monash University (1991) .… 7.20 Y

Young and State Insurance Office, Re (1986) .… 5.30 Young v Wicks (1986) .… 3.24, 6.16, 6.58 Z Z and Australian Taxation Office, Re (1984) .… 5.8, 6.23, 7.66 Zacek and Australian Postal Corporation, Re [2002] .… 7.6 Zeqaj v Victoria Police (General) [2010] .… 3.30

Table of Statutes Italicised references are to Appendix pages; all other references are to paragraphs

COMMONWEALTH Acts Interpretation Act 1901 s 25D .… 1.33 s 36 .… 11.37 Acts Interpretation Act 1982 s 2B .… 2.57 Administrative Appeals Tribunal Act 1975 .… 1.7, 9.39 s 28 .… 1.33 s 35 .… 9.47 s 35(2) .… 10.172 s 37 .… 9.47 s 38AA .… 9.47 s 45 .… 9.56 Administrative Decisions (Judicial Review) Act 1977 .… 1.7, 10.9, 10.48 s 5 .… 9.57 s 10(2) .… 9.57 s 13 .… 1.33

Agricultural and Veterinary Chemicals Code Act 1994 s 4 .… 11.73 Sch .… 11.73 Archives Act 1983 .… 1.15, 1.138, 1.141, 1.151, 1.154, 2.41, 2.57, 2.223, 2.239, 4.2, 4.16, 4.149, 4.175, 4.181, 4.183, 4.189, 4.190, 5.53, 5.55, 6.117, 6.128, 7.107, 8.23, 8.140, 8.161, 10.164, 12.43 Pt V, Div 3 .… 10.168 Pt VIII .… 2.219 s 2A .… 12.41 s 3(1) .… 2.218, 2.219, 4.152 s 3(5) .… 2.219 s 3(6) .… 2.219 s 3(7) .… 4.152 s 6(2) .… 4.170 s 18 .… 2.219 s 19(1) .… 2.219 s 19(2) .… 2.219 s 20 .… 2.219 s 22 .… 2.219 s 22A .… 4.152 s 22B .… 4.152 s 24 .… 2.219, 2.220, 4.39 s 26 .… 2.220 s 27 .… 2.221 s 29 .… 2.221 s 31(2) .… 4.150

s 31(4) .… 4.153 s 32(1) .… 4.169 s 32(2) .… 4.169 s 33 .… 4.159, 6.127 s 33(1) .… 7.121, 8.157, 10.167 s 33(1)(a) .… 4.165, 8.157, 8.159, 10.171, 10.174 s 33(1)(b) .… 4.165, 8.157, 10.171, 10.174 s 33(1)(c) .… 7.122 s 33(1)(d) .… 6.127, 7.125, 8.160 s 33(1)(e) .… 4.165, 8.157 s 33(1)(f) .… 8.157 s 33(1)(g) .… 6.127 s 33(1)(h) .… 6.127, 7.123 s 33(1)(j) .… 6.127, 7.124 s 33(1A) .… 8.157 s 33(2) .… 8.157 s 33(4) .… 8.157 s 33(5) .… 7.124 s 35 .… 4.163, 10.165, 10.168, 10.169 s 36(1) .… 4.157 s 36(2) .… 4.156 s 36(4) .… 4.157 s 36(4)(a) .… 10.168 s 36(4)(b) .… 10.168 s 36(4)(d) .… 10.168

s 36(5) .… 4.157 s 37 .… 4.158, 10.168, 10.170 s 38 .… 4.164, 10.173 s 39(1) .… 4.165 s 39(2) .… 4.165 s 40 .… 4.154, 4.165, 10.165 s 40(1) .… 4.154, 4.166 s 40(2) .… 4.160 s 40(3) .… 4.166 s 40(4) .… 4.166 s 40(5) .… 4.167 s 40(7) .… 4.167 s 40(8) .… 4.168 s 42(1) .… 10.165, 10.168 s 42(2) .… 10.165 s 42(4) .… 10.165 s 43(1) .… 10.168 s 43(2) .… 10.168 s 43(3) .… 10.168 s 43(4) .… 10.168 s 44(1) .… 10.169 s 44(2) .… 10.170 s 44(3) .… 10.170 s 44(7) .… 10.170 s 46 .… 10.171

s 50A .… 10.174 s 51 .… 5.54, 10.169 s 52(1) .… 10.172 s 52(2)(a) .… 10.172 s 52(2)(b) .… 10.172 s 53(1) .… 10.173 s 53(4) .… 10.173 s 53(5) .… 10.173 s 53(6) .… 10.173 s 53(7) .… 10.173 s 55 .… 10.166 s 55(5) .… 10.167 s 56 .… 2.222, 4.151 s 57 .… 4.170 s 57(1) .… 4.170 s 57(1A) .… 4.170 s 57(2) .… 4.170 s 58 .… 4.151, 4.155, 4.170 s 59 .… 7.126 ss 65–67 .… 11.69 s 66(5)–(6) .… 11.69 s 67(3)–(4) .… 11.69 s 68 .… 11.69 Archives Regulations 1984 reg 2A .… 2.219

reg 9 .… 4.151 reg 11 .… 4.161 Australian Capital Territory Government Service (Consequential Provisions) Act 1994 .… 1.58, 720 Australian Capital Territory (Self-Government) Act 1988 .… 2.218 Australian Human Rights Commission Act 1986 .… 1.102, 1.109 Australian Information Commissioner Act 2010 .… 1.8, 1.9, 1.163, 2.30, 10.2, 12.16 s 8 .… 9.4 s 29 .… 10.47 s 30(a) .… 11.42 Australian Security Intelligence Organisation Act 1979 .… 8.159 ss 26–26F .… 1.136 Australian War Memorial Act 1980 .… 2.219, 3.18 Commonwealth Electoral Act 1918 Pt XI .… 2.71 s 125 .… 11.73 Commonwealth of Australia Constitution Act s 49 .… 8.121 s 51(xxxi) .… 6.69 s 75(v) .… 9.57 Conciliation and Arbitration Act 1904 .… 2.67 Copyright Act 1968 .… 1.43, 2.168 Corporations Act 2001 .… 11.52 s 992A .… 1.121 Corporations Law

s 50 .… 2.72 Crimes Act 1914 .… 1.106, 10.4 Pt VIIC .… 1.114 s 39 .… 2.220 s 70 .… 1.106 s 79 .… 1.106 Criminal Code Act 1995 s 13.3(3) .… 10.43 Sch 474.4 .… 1.123 Sch 474.19 .… 1.123 Sch 477.1 .… 1.123 Data-matching Program (Assistance and Tax) Act 1990 .… 1.61, 10.4 Pt 2 .… 1.111 Do Not Call Register Act 2006 .… 1.121 Electoral Act 1918 .… 8.125, 8.126, 8.128 Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 .… 8.128 Electronic Transactions Act 1999 .… 3.172 s 51A .… 3.173 Evidence Act 1995 .… 8.106 ss 117–126 .… 1.41 s 118 .… 8.106 s 119 .… 8.106 ss 129–131 .… 1.41 Freedom of Information Act 1982 .… 1.3, 1.4, 1.7, 1.8, 1.10, 1.12, 1.39, 1.59, 1.141, 1.144, 1.147, 1.150, 1.154, 1.163, 1.181, 2.3,

2.5, 2.9, 2.11, 2.13, 2.20, 2.21, 2.26, 2.28, 2.29, 2.36, 2.37, 2.39, 2.218, 2.222, 3.1, 3.7, 3.15, 3.19, 3.25, 3.30, 3.58, 3.79, 3.91, 3.92, 3.97, 3.99, 3.118–3.120, 3.130, 3.149, 3.151, 3.153, 3.156, 3.161, 3.170, 3.177, 3.183, 3.184, 3.189, 3.193, 3.199, 4.15, 4.31, 4.32, 4.43, 4.145, 4.149, 4.165, 4.170, 4.190, 5.9, 5.19, 5.22, 5.23, 5.25, 5.53, 6.33, 6.52, 6.57, 6.60, 6.69, 6.116, 6.117, 7.8, 7.25, 7.28, 7.34, 7.35, 7.49, 7.53, 7.59, 7.107, 8.31, 8.62, 8.78, 8.98, 8.102, 8.106, 8.132, 8.136, 8.140, 8.158, 8.161, 9.4, 9.57, 9.133, 10.2, 10.22, 10.164, 10.169, 11.2, 11.18, 11.21, 11.25, 11.32, 11.36, 12.7, 12.14, 12.16, 12.30, 726, 735, 741, 747 Pt II .… 3.142, 11.4, 11.5, 11.9 Pt III .… 11.12 Pt IV .… 2.40 Pt IV, Div 2 .… 6.6, 7.2, 8.2 Pt IV, Div 3 .… 6.6, 7.2, 8.2, 10.29 Pt V .… 1.9 Pt VI .… 3.65 s 3 .… 2.6, 11.5 s 3(1) .… 2.6, 3.66, 5.29 s 3(2) .… 1.20, 2.6 s 3(3) .… 1.26, 2.6 s 3(4) .… 2.6, 3.100 s 3A .… 3.3, 5.3, 11.5 s 4(1) .… 2.14, 2.16–2.18, 2.33, 2.40, 3.17, 3.122, 3.158, 6.12, 8.26 s 4(1)(d) .… 2.33 s 4(1)(e) .… 2.33 s 4(2) .… 2.18, 2.19 s 4(3) .… 2.18

s 4(5) .… 8.7 s 4(10) .… 8.14 s 5 .… 2.18, 2.19 s 6 .… 2.18, 2.19 s 6(1) .… 2.16 s 6C .… 2.14 s 7 .… 2.19, 2.40, 8.87 s 7(1) .… 2.18, 2.19, 8.115 s 7(2) .… 2.19 s 7(2A) .… 2.19 s 7(2AA) .… 2.19 s 7(2B) .… 2.19 s 7(2C) .… 2.19 s 7(2D) .… 2.19 s 7(2E) .… 2.19 s 7(3) .… 2.19 s 7(3A) .… 2.19 s 7(4) .… 2.19 s 7G(2) .… 6.65 s 8 .… 11.28 s 8(1) .… 11.12 s 8(2) .… 3.24 s 8(2)(a) .… 11.12 s 8(2)(b) .… 11.12 s 8(2)(c) .… 11.12

s 8(2)(d) .… 11.12 s 8(2)(e) .… 11.12 s 8(2)(f) .… 11.12 s 8(2)(g) .… 11.12 s 8(2)(h) .… 11.12 s 8(2)(i) .… 11.12 s 8(2)(j) .… 11.12 s 8(3) .… 11.4, 11.12 s 8A .… 7.29 s 8A(1) .… 11.27 s 8A(2) .… 7.29, 11.27 s 8B .… 11.5 s 8C .… 11.4 s 8D(2) .… 11.5 s 8D(3) .… 11.5 s 8D(4) .… 11.6 s 8D(5) .… 11.6 s 9A .… 11.5 s 10(1) .… 11.28 s 11 .… 3.6 s 11(2) .… 3.9, 3.12, 3.14, 5.36, 5.37, 6.32 s 11(3) .… 11.37 s 11(4) .… 11.37 s 11(5) .… 11.37 s 11(6) .… 11.37

s 11A(5) .… 5.3 s 11B .… 5.37 s 11B(3)(c) .… 5.32 s 11B(3)(d) .… 3.14 s 11B(4) .… 5.21, 7.12 s 11B(4(b) .… 7.19 s 11B(4)(c) .… 7.16 s 11B(4)(d) .… 7.19 s 11B(5) .… 5.20 s 11C .… 3.142, 11.12 s 11C(2) .… 11.37 s 12(1) .… 2.41 s 12(2) .… 1.151, 2.42, 3.84 s 13(1) .… 3.18 s 13(2) .… 3.18 s 13(3) .… 3.18 s 13(3)(b) .… 3.18 s 13(3)(c) .… 3.18 s 13(4) .… 2.41 s 15(2) .… 3.23 s 15(3) .… 3.24, 3.47 s 15(4) .… 3.24 s 15(5) .… 3.35, 3.73 s 15(5)-(8) .… 3.34 s 15(6) .… 3.35, 3.123

s 15(7) .… 3.35 s 15(8) .… 3.35 s 15A .… 3.84 s 15A(2) .… 3.32 s 15AA .… 3.35 s 15AB .… 3.35 s 16(1) .… 3.40, 3.47 s 16(2) .… 3.41 s 16(3) .… 3.41 s 16(3A) .… 3.40, 3.41, 3.47 s 16(4) .… 3.42 s 16(5) .… 3.42 s 16(6) .… 3.40, 3.47 s 17 .… 2.32, 3.69 s 20(1) .… 3.69 s 20(2) .… 3.70 s 20(3) .… 3.70 s 20(4) .… 3.70, 3.108 s 21 .… 3.60, 3.80 s 21(1)(c) .… 7.50 s 21(1)(d) .… 9.8 s 21(2) .… 3.76 s 22 .… 2.40, 8.97 s 22(1) .… 3.53 s 22(1)(b) .… 3.53

s 22(1)(c) .… 3.53 s 22(2) .… 3.54 s 22(2)(a) .… 3.74 s 22(2)(b) .… 3.54, 3.74 s 23 .… 3.33, 9.74 s 23(1) .… 3.175 s 23(2) .… 3.175 s 24 .… 3.84, 9.16 s 24A .… 3.85, 9.44 s 24A(2)(c) .… 3.24 s 24AA .… 9.16 s 24T .… 9.17 s 25 .… 3.66, 9.26, 9.75 s 25(1) .… 9.45 s 25(2) .… 3.65 s 25(3) .… 3.65 s 26 .… 3.66, 3.74, 9.14, 9.63 s 26(1) .… 3.63, 9.40 s 26(1)(a) .… 3.75 s 26(1)(b) .… 3.76 s 26(1)(c) .… 3.76 s 26(2) .… 3.66, 3.75 s 26A .… 3.122, 8.37, 9.9, 9.12, 9.61 s 26A–27A .… 3.121 s 26A(1) .… 3.123

s 26AA .… 3.123, 9.9, 9.12, 9.61 s 27 .… 3.83, 3.124, 9.9, 9.12, 9.61 s 27A .… 3.125, 9.9, 9.12, 9.61 s 27A(1) .… 3.125 s 27A(2) .… 3.125 s 29 .… 3.77, 3.100, 8.28 s 29(1) .… 3.104 s 29(1)(f)(ii) .… 3.104 s 29(2) .… 3.105 s 29(3) .… 3.105 s 29(4) .… 3.106 s 29(5) .… 3.107 s 29(6) .… 3.104, 3.106 s 29(7) .… 3.104 s 31 .… 3.105 s 31A .… 5.3 s 32 .… 5.8 s 33 .… 3.65, 5.14, 6.29, 8.5, 9.31, 9.46, 10.27 s 33(b) .… 8.14 s 33(1) .… 8.5, 8.15 s 33(1)(a) .… 8.6 s 33(1)(b) .… 8.14, 8.24, 8.33 s 33(2A) .… 6.29, 8.73 s 33A .… 8.26, 8.30, 8.35, 8.36, 10.27 s 33A(a) .… 8.36

s 33A(b) .… 8.36 s 33AA .… 5.14 s 34 .… 8.41, 9.31 s 34(1) .… 5.12 s 34(1)(a) .… 8.42, 8.45, 8.46 s 34(1)(b) .… 6.65, 8.42 s 34(1)(c) .… 8.42, 8.50 s 34(1)(d) .… 8.42 s 34(2) .… 8.42 s 34(3) .… 8.42, 8.49 s 35 .… 8.41 s 36 .… 7.4, 7.6, 8.68 s 36(3) .… 7.22 s 37 .… 3.65, 5.14, 8.89, 8.90, 8.124 s 37(1) .… 8.59, 8.89, 10.27 s 37(1)(a) .… 8.59, 8.64 s 37(1)(b) .… 5.35, 8.59, 8.64, 8.65, 8.71 s 37(1)(c) .… 8.59, 8.73, 8.74 s 37(2)(a) .… 8.59, 8.76 s 37(2)(b) .… 8.59, 8.77, 8.81, 8.82 s 37(2)(c) .… 8.59, 8.83 s 37(2A) .… 8.60, 8.72 s 37(3) .… 8.60 s 38 .… 2.30, 5.8, 8.96, 8.100, 8.101 s 38(1) .… 8.93, 8.96, 8.97

s 38(1)(b)(ii) .… 8.96 s 38(1A) .… 8.93 s 38(2) .… 8.97 s 38(3) .… 8.97 s 39 .… 7.47, 7.122 s 39(2) .… 7.48 s 40 .… 5.14 s 40(1)(a) .… 7.54 s 40(1)(c) .… 7.56 s 40(1)(d) .… 6.70, 7.60, 7.71 s 41 .… 1.9, 5.33, 6.8, 6.9, 6.16, 6.127 s 41(1) .… 6.32 s 41(2) .… 6.32 s 41(3)(c) .… 6.38 s 41(3)(d) .… 6.38 s 42 .… 5.35, 8.105, 8.107 s 42(1) .… 8.105 s 42(3) .… 8.105 s 43 .… 5.33, 6.48, 7.38 s 43(1) .… 6.70, 7.38, 7.124 s 43(1)(c) .… 7.124 s 43A .… 7.50 s 44 .… 5.14, 8.115 s 45 .… 5.11, 6.127, 7.73, 7.76, 7.81, 7.82, 7.87, 7.88, 7.90, 8.160 s 45(1) .… 7.73, 7.87

s 45(2) .… 7.73 s 45A .… 3.65, 8.115, 9.31 s 46 .… 8.118, 8.119 s 47 .… 3.124, 6.48, 6.49, 7.37, 8.124, 9.9 s 47(1) .… 5.12, 8.126 s 47(3) .… 7.38 s 47A .… 8.125, 8.128 s 47A(2) .… 8.125 ss 47A(3)–(5) .… 8.126 s 47B .… 3.122, 8.26 s 47B(1)(b) .… 8.33 s 47B(1)(d) .… 8.33 s 47B(1)(f) .… 8.33 s 47C .… 5.11, 7.4, 7.11, 7.67 s 47C(1)(a) .… 7.5 s 47C(2)(a) .… 7.29 s 47C(2)(b) .… 7.30 s 47C(3)(b) .… 7.33 s 47C(3)(c) .… 7.32 s 47D .… 7.47 s 47E(a) .… 7.54 s 47E(b) .… 7.54 s 47E(c) .… 7.54, 7.56 s 47E(d) .… 7.60, 7.67, 7.71 s 47F .… 1.145, 3.125, 6.8, 6.9, 6.12, 6.26, 6.31, 8.97

s 47F(a) .… 6.38 s 47F(b) .… 6.38 s 47F(1) .… 6.9 s 47F(2) .… 6.26, 6.32 s 47F(4) .… 3.136 s 47F(4)(a) .… 6.35 s 47F(4)(b) .… 6.36 s 47F(5) .… 3.136, 9.8 s 47F(7) .… 3.136 s 47F(8) .… 6.35 s 47G .… 3.124, 5.15, 6.48, 6.64, 7.37 s 47G(1)(a) .… 6.49, 6.56, 7.38 s 47G(1)(b) .… 6.55, 7.39 s 47G(4) .… 7.38 s 47G(5) .… 6.58 s 47(H) .… 7.50 s 48 .… 3.171 s 50(1) .… 3.185 s 50(2) .… 3.186 s 50(3) .… 3.192 s 51(1) .… 3.194 s 51A .… 3.194 s 51B .… 3.194 s 51C .… 3.177 s 51C(1) .… 3.177

s 51C(2) .… 3.177 s 51C(3) .… 3.177 s 51C(4) .… 3.177 s 51C(5) .… 3.178 s 51C(6) .… 3.178 s 51C(7) .… 3.178 s 51C(8) .… 3.178 s 51D(1) .… 3.179 s 51D(2) .… 3.175 s 51D(3) .… 3.180 s 51E .… 3.194 s 53A .… 9.8 s 53B .… 9.9 s 54(1) .… 9.12, 9.61 s 54(2) .… 9.62 s 54(3) .… 9.62 s 54B(1)(b) .… 9.13, 9.62 s 54B(2) .… 9.13 s 54B(3) .… 9.13 s 54C(2) .… 9.14, 9.63 s 54D .… 9.14, 9.63 s 54Q(3) .… 9.21 s 54S .… 9.17 s 54V .… 9.18 s 54W .… 9.18

s 55 .… 9.19 s 55(5) .… 9.20 s 55(6) .… 3.165 s 55C .… 9.20 s 55D .… 9.22 s 55D(2) .… 9.22 s 55DA .… 9.23 s 55E .… 9.23 s 55G .… 9.24 s 55H .… 9.25 s 55K(4) .… 9.26 s 55K(5).….9.26 s 55L(2) .… 9.28 s 55M(1) .… 3.165 s 55M(1) .… 9.29 s 55M(2) .… 9.29 s 55N .… 9.27 s 55R .… 9.30 s 55T .… 9.31 s 55U .… 9.31 s 55V .… 9.32 s 55W .… 9.30 s 55Y .… 9.33 s 55Z .… 9.33 s 55ZA .… 9.34

s 55ZB .… 9.34 s 55ZC .… 9.34 s 55ZD .… 9.34 s 56 .… 9.36 s 56(1) .… 3.34 s 56A .… 9.36 s 57A .… 9.37, 9.41, 9.66 s 57A(1)(b) .… 9.18 s 58(1) .… 9.39 s 58(2) .… 9.43 s 58A .… 9.44 s 58A(2) .… 3.85 s 58AA .… 9.43 s 60(3) .… 9.39 s 60(3)(d) .… 9.38 s 60AA .… 9.38 s 60AB .… 9.38 s 60AB(3) .… 9.38 s 61 .… 5.39 s 61(1) .… 9.55 s 61(2) .… 9.55 s 61A .… 9.39 s 62(2) .… 9.40 s 63 .… 9.45 s 63(1) .… 9.47

s 63(2) .… 9.45 s 64 .… 9.47 s 64(1) .… 9.47 s 64(2) .… 9.47 s 64(5) .… 9.47 s 66 .… 9.48 s 66(2) .… 9.48 s 69(2) .… 9.70 s 70(1) .… 9.71 s 70(2) .… 9.71 s 70(3) .… 9.71 s 72 .… 9.73 s 73 .… 9.72 s 75(1) .… 9.73 s 75(2)–(4) .… 9.73 s 76(1) .… 9.74 s 77 .… 9.74 s 78 .… 9.74 s 79 .… 9.74 s 80 .… 9.74 s 81 .… 9.74 s 82 .… 9.74 s 83 .… 9.74 s 85 .… 9.74 s 89 .… 9.75

s 89A(2) .… 9.75 s 89A(5) .… 9.75 s 89D(2) .… 9.76 s 89D(3) .… 9.76 s 89F–89J .… 9.77 s 89K .… 9.58 s 89L(1) .… 9.58 s 89L(2) .… 9.58 s 89L(4) .… 9.58 s 89M(1) .… 9.58 s 89M(2) .… 9.58 s 89N .… 9.37 s 90 .… 3.142, 5.3 s 90(1) .… 3.142 s 90(2) .… 3.142 s 91 .… 3.143 s 91(1C) .… 3.143 s 91(2) .… 3.143 s 92 .… 3.144, 5.3 s 92A .… 11.43 Sch 1 .… 2.19, 3.175, 719 Sch 1 cl 6 .… 2.21 Sch 2 .… 2.21, 8.87, 719 Sch 2, Pt 1 .… 2.18, 2.27, 3.41 Sch 2, Pt 1, Div 1 .… 2.19, 8.115

Sch 2, Pt 1, Div 2 .… 2.19 Sch 2, Pt II .… 2.19, 2.27, 3.41, 6.70, 7.38 Sch 2, Pt III .… 2.19, 3.41 Sch 3 .… 8.93, 8.96 Sch 4 .… 7.50 Sch 4 cl 2 .… 2.20 Freedom of Information Amendment Act 1986 .… 1.8 Freedom of Information Amendment Act 1991 .… 1.9 Freedom of Information Amendment (Reform) Act 2010 .… 1.9 Freedom of Information (Charges) Regulations 1982 .… 3.98, 3.100 reg 3 .… 3.101 reg 5 .… 3.101 reg 8 .… 3.70 reg 10(4)(1) .… 3.105 reg 14 .… 3.105 Sch Pt I .… 3.102 Sch Pt II .… 3.103 Freedom of Information Laws Amendment Act 1986 .… 1.9 Freedom of Information (Miscellaneous Amendments) Act 1999 .… 6.19 Freedom of Information (Miscellaneous Provisions) Regulations 1982 reg 3 .… 2.18 Sch 1 .… 2.18 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 .… 1.9 Income Tax Assessment Act 1936

Pt VA .… 1.61, 2.99, 2.101 s 16(2) .… 8.97 Intelligence Services Act 2001 .… 2.30 Judiciary Act 1903 s 39B .… 9.57, 10.48 Migration Act 1958 s 5(1)(c) .… 7.85 s 359(4)(c) .… 7.85 s 503(8) .… 8.96 s 503A .… 8.96, 8.97 Migration Legislation Amendment (Protected Information) Act 2003 . … 8.96 National Consumer Credit Protection Act 2009 .… 2.109, 2.110 National Health Act 1953 .… 10.4 s 135AA .… 2.63 National Security Amendment Act 2010 .… 1.179 Ombudsman Act 1976 .… 1.7, 9.77, 10.166 s 5 .… 9.78 s 6 .… 9.80 s 7(1) .… 9.79 s 7(2) .… 9.79 s 7A .… 9.81 s 8 .… 9.81 s 9 .… 9.82 s 13 .… 9.82 s 14 .… 9.82

s 15 .… 9.83 s 15(1) .… 9.83 s 15(2) .… 9.83 s 15(6) .… 9.83 s 17 .… 9.84 Parliament Services Amendment (Freedom of Information) Act 2013 . … 2.18 Parliamentary Service Act 1999 s 68A .… 8.115 Personally Controlled Electronic Health Records Act 2012 (PCEHR) . … 1.112, 10.4 Privacy Act 1988 .… 1.9, 1.54, 1.55, 1.56, 1.58, 1.60, 1.72, 1.73, 1.75, 1.83, 1.88, 1.94, 1.96, 1.109, 1.144, 1.148, 2.51, 2.52, 2.53, 2.58, 2.59, 2.74, 2.76, 2.94–2.96, 2.133, 2.134, 2.142, 2.145, 2.147, 2.151, 2.168, 2.213, 2.214, 2.216, 3.168, 4.2, 4.7, 4.31, 4.80, 4.101, 4.145–4.147, 6.13, 10.2, 10.74, 10.82, 11.56, 12.14, 12.16, 12.38, 720, 726, 732, 738 Pt IIA Div 2 subdiv 2 .… 6.80 Pt IIA Div 2 subdiv 3 .… 6.81 Pt III .… 11.61 Pt IIIA .… 1.62, 1.63, 2.109, 2.110, 2.127, 4.9, 4.47, 4.52, 6.79, 10.3 Pt IIIA Div 2 .… 2.111, 2.112, 4.47 Pt IIIA Div 2 Subdiv 3 .… 2.121 Pt IIIA Div 2 Subdiv 4 .… 2.127 Pt IIIA Div 3 .… 2.122, 4.47 Pt IIIA Div 4 subdiv D .… 6.82

Pt IIIB .… 4.5 Pt IV Div 4 .… 10.32 Pt V .… 1.64, 10.5 s 2A .… 2.54, 10.20 s 5B .… 2.73 s 5B(1) .… 2.58 s 5B(1)(A) .… 2.58 s 5B(2) .… 2.115, 6.80 s 5B(3)(b) .… 2.58 s 6 .… 1.155 s 6(1) .… 1.63, 2.55–2.57, 2.60, 2.61, 2.66–2.71, 2.73, 2.75, 2.79, 2.82–2.84, 2.90, 2.99, 2.109, 2.111, 2.115, 2.127, 3.158, 4.10, 4.47, 4.48, 4.54, 4.59, 4.66, 6.12, 6.79, 6.80, 7.113, 8.144, 8.145 s 6A(2) .… 2.73 s 6AA .… 2.79 s 6C .… 2.61, 2.66, 2.68 s 6C(1) .… 2.68, 2.71 s 6C(3) .… 2.70 s 6C(4) .… 2.70 s 6D .… 2.61, 2.68, 2.172 s 6D(1) .… 2.69 s 6D(3) .… 2.69 s 6D(3)(b) .… 2.69 s 6D(4)(a) .… 2.69 s 6D(4)(b) .… 2.69

s 6D(4)(c) .… 2.69 s 6D(4)(e) .… 2.69 s 6D(4)(f) .… 2.69 s 6D(6) .… 2.69 s 6D(7) .… 2.69 s 6D(9) .… 2.69 s 6DA .… 2.69 s 6EA .… 2.69 s 6F .… 2.70 ss 6G–6K .… 4.47, 6.79 s 6M .… 6.79 s 6N .… 2.110, 4.48, 4.59, 4.66 s 6Q(1)(d) .… 1.63 s 7A .… 2.88, 6.76 s 7B(1) .… 2.71 s 7B(2) .… 2.68 s 7B(3) .… 2.61, 2.71 s 7B(4) .… 2.71 s 7B(5) .… 2.71, 2.75 s 10(4) .… 1.155, 4.10 s 13(4) .… 2.101 s 13(4)(a) .… 1.61 s 13(4)(b) .… 1.61 s 13(5)(a) .… 1.111 s 13B .… 2.72

s 13G .… 10.13 s 16A .… 2.77, 698 s 16A(1) .… 2.90 s 16A(2) .… 2.78 s 16B .… 2.61, 2.77, 698 s 16B(1) .… 2.79 s 16B(2) .… 2.79 s 16B(3) .… 2.79 s 16B(4) .… 2.79 s 16B(5) .… 2.79 s 16C .… 2.89 s 17 .… 10.3 s 17(1) .… 1.66 s 20(4) .… 4.47 s 20B .… 2.112 s 20C .… 2.113 s 20C(3)(a) .… 2.115, 6.80 s 20D .… 2.113 s 20E .… 2.114, 2.115, 6.80 s 20E(3) .… 2.115 s 20E(4) .… 2.115, 6.80 s 20F .… 2.115, 6.80 s 20G .… 2.114, 2.116, 6.80 s 20G(1) .… 2.116 s 20H .… 1.63, 2.114, 2.117, 6.80

s 20J .… 2.117 s 20K .… 1.63, 6.80 s 20K(1) .… 2.114 s 20L .… 2.114 s 20M .… 2.114, 6.80 ss 20N–20P .… 2.118 s 20Q .… 4.66 s 20R(1) .… 4.48 s 20R(2) .… 4.48 s 20R(3) .… 4.53 s 20R(5) .… 4.51 s 20R(6) .… 4.51 s 20R(7) .… 4.49 ss 20R–20U .… 2.120 s 20S .… 4.59 s 20T(5) .… 4.57, 4.65 s 20U(1) .… 4.59 s 20U(2) .… 4.62 s 20U(3) .… 4.63 s 20U(4) .… 4.62 s 20U(5) .… 4.64 ss 20V–20ZA .… 2.119 s 20W .… 2.119 s 20X .… 2.119 s 20Y .… 2.119

s 20Z .… 2.119 s 20ZA .… 2.119 s 21B .… 2.122 ss 21C–21F .… 2.123 s 21D(2) .… 2.115, 6.80 s 21G .… 2.124, 6.81 ss 21G–21P .… 2.124 ss 21H–21NA .… 2.124, 6.81 ss 21Q–21S .… 2.125 s 21T(1) .… 4.54 s 21T(2) .… 4.54 s 21T(6) .… 4.57 ss 21T–21W .… 2.126 s 21U(4) .… 4.47 s 21V(1) .… 4.66 s 21V(2) .… 4.67 s 21V(3) .… 4.68 s 21V(4) .… 4.68 s 21V(5) .… 4.72 s 21V(6) .… 4.47 s 21W(2) .… 4.69 s 21W(3) .… 4.70 s 21W(4) .… 4.69 s 21W(5) .… 4.71 s 22A .… 2.128

ss 22B–22F .… 2.129 s 22C .… 2.129, 6.82 s 22D .… 2.129, 6.82 s 22E .… 2.129, 6.82 s 22F .… 2.129, 6.82 s 24 .… 2.110, 6.79 s 24(1) .… 10.45 s 24(2) .… 10.45 s 24A .… 2.110, 6.79 s 24A(1) .… 10.45 s 24A(2) .… 10.45 s 26U .… 11.67 s 26XL .… 11.66 s 27 .… 11.68 s 27(1)(b) .… 1.66 s 27F .… 2.115 s 28 .… 10.5, 11.68 s 28(1)(a) .… 1.66 s 28A .… 10.5, 11.68 s 28B .… 10.5 s 29 .… 10.20, 10.21 s 30 .… 10.25 s 30(3) .… 10.25 s 30(4) .… 10.25 s 30(5) .… 10.25

s 31 .… 10.25 s 31(4) .… 10.25 s 31(5) .… 10.25 s 32 .… 10.25 s 32(2) .… 10.25 s 32(3) .… 10.25 s 33(2) .… 10.26 s 33C .… 10.5 s 33D(1) .… 10.5 s 33D(3) .… 10.5 s 33E .… 10.14 s 33F .… 10.14 s 34(1) .… 10.27 s 34(2) .… 10.27 s 35 .… 4.43, 10.15 s 35(1)(f) .… 10.15 s 36 .… 1.65, 10.6 s 36(4) .… 10.6 s 38 .… 10.7 s 38A .… 10.7 s 40 .… 10.5 s 40(1A) .… 10.6 s 40(2) .… 1.64 s 40A .… 10.5 s 41(1) .… 10.8

s 41(2) .… 10.8 s 41(3) .… 10.8 s 42 .… 10.8 s 43(1) .… 10.10 s 43(1)(da)–(dd) .… 10.8 s 43(1A) .… 10.10 s 43(2) .… 10.17 s 43(4)–(7) .… 10.17 s 43(8) .… 10.17 s 43(8A) .… 10.17 s 43(9) .… 10.19, 10.36 s 44 .… 10.22 s 45 .… 10.22 s 46 .… 10.22 s 47 .… 10.22 s 48 .… 10.9 s 49(1) .… 10.18 s 49(2) .… 10.18 s 49(3) .… 10.18 s 49(4) .… 10.18 s 51(1A) .… 10.11 s 52 .… 10.11, 10.30, 11.58 s 52(1B) .… 10.16 s 52(2) .… 10.16 s 52(4) .… 10.12

s 52(5) .… 10.12 s 54 .… 10.29 s 54(2) .… 10.29 s 55 .… 10.30, 10.39 s 55A .… 10.5, 10.35 s 55A(2) .… 10.30 s 55A(3) .… 10.30 s 55A(4) .… 10.30 s 55A(6) .… 10.31 s 55A(6)(c) .… 10.31 s 55A(7A) .… 10.30 s 55B .… 10.31 s 55B(3) .… 10.31 s 57(2) .… 10.32 s 58 .… 10.33 s 59(a) .… 10.33 s 59(b) .… 10.33 s 59(ba) .… 10.33 s 59(c) .… 10.33 s 60(1) .… 10.34 s 60(2) .… 10.34 s 62 .… 10.5 s 63 .… 10.39 s 64 .… 10.40 s 65 .… 10.42

s 66 .… 10.43 s 66(1A) .… 10.43 s 66(4)–(11) .… 10.43 s 67 .… 10.40 s 68 .… 10.24 s 68A .… 10.24 s 70 .… 10.22 s 70(1) .… 10.22 s 70(2) .… 10.23 s 72 .… 10.8 s 80E .… 11.67 s 80Q .… 10.46 s 80W .… 10.13 s 80W(6) .… 10.13 s 95 .… 2.63 s 95A .… 2.63, 2.79 s 95AA .… 2.79 s 95B .… 2.73, 2.89, 4.12 s 96 .… 10.37 s 98 .… 10.38 s 99A .… 10.44 s 99A(7) .… 10.44 s 99A(8) .… 10.44 IPP 11(1)(d) .… 6.31 APP 1 .… 2.80, 2.112, 2.128, 6.77, 11.60, 693

APP 1.4(d) .… 4.19 APP 2 .… 2.81, 694 APP 3 .… 2.83, 2.84, 694 APP 3.1 .… 2.83 APP 3.2 .… 2.83 APP 3.3(a)(i) .… 2.83 APP 3.3(a)(ii) .… 2.83 APP 3.4(c) .… 2.83 APP 3.4(d) .… 2.83 APP 3.4(e) .… 2.83 APP 3.5 .… 2.83 APP 3.6 .… 2.83 APPs 3–5 .… 2.138 APP 4 .… 2.84, 2.113, 4.39, 695 APP 5 .… 2.85, 695 APPs 5–13 .… 2.84 APP 6 .… 2.87, 6.74–6.76, 6.103, 696 APP 6.1 .… 2.87 APP 6.2(b) .… 2.87, 6.75 APP 6.2(c) .… 2.87, 6.75 APP 6.2(d) .… 2.87, 6.75 APP 6.2(e) .… 2.87, 6.75 APP 6.3 .… 2.87, 6.75 APP 6.4 .… 2.87, 6.75, 696 APP 6.5 .… 2.87, 6.75, 696

APP 6.6 .… 2.87, 6.72, 696 APP 6.7 .… 2.87, 6.75, 6.76, 696 APPs 6–9 .… 2.86 APP 7 .… 2.88, 6.74, 6.76, 696 APP 7.2 .… 2.88 APP 7.3 .… 2.88 APP 7.4 .… 2.88 APP 7.5 .… 2.88 APP 7.6 .… 697 APP 7.6(d) .… 2.88 APP 7.6(e) .… 2.88 APP 7.7 .… 697 APP 7.7(b) .… 2.88 APP 7.8 .… 697 APP 8 .… 2.89, 6.74, 6.77, 697 APP 8.1 .… 6.77 APP 8.2(a) .… 2.89, 6.77 APP 8.2(b) .… 6.77 APP 8.2(b)–(f) .… 2.89 APP 9 .… 2.90, 6.74, 6.76, 698 APP 9.1 .… 2.90 APP 9.2 .… 2.90 APP 9.3 .… 2.90 APP 10 .… 2.91, 2.160, 698 APP 10.2 .… 4.11

APP 11 .… 2.92, 2.160, 4.20, 4.35, 4.39, 698 APP 11.2 .… 4.29 APP 12 .… 4.10, 4.13, 4.19, 4.47, 6.116, 6.118, 6.124, 7.107, 7.108, 8.140, 8.141, 699 APP 12.1 .… 7.109 APP 12.2(b)(i) .… 4.15 APP 12.2(b)(ii) .… 4.16 APP 12.3 .… 4.17, 6.118, 7.108, 8.141 APP 12.3(a) .… 6.119 APP 12.3(b) .… 6.120 APP 12.3(c) .… 7.112 APP 12.3(d) .… 7.111, 8.142 APP 12.3(e) .… 7.109, 7.114 APP 12.3(f) .… 8.143 APP 12.3(g) .… 8.143 APP 12.3(h) .… 7.113, 8.144 APP 12.3(i) .… 8.145 APP 12.3(j) .… 7.110 APP 12.5 .… 4.24 APP 12.6 .… 4.24 APP 12.10 .… 4.25 APP 13 .… 4.10, 4.13, 4.38, 4.39, 4.43, 4.47, 4.60, 4.67, 699 APP 13.1 .… 4.28 APP 13.4 .… 4.40 NPP 2.3 .… 698 NPP 6 .… 6.118, 7.108, 8.141

NPP 6.1(c) .… 6.121 NPP 9 .… 2.89 Sch 1 .… 1.60, 8.140, 10.3, 693 Sch 1 cl 6.1 .… 6.72 Privacy Amendment (Enhancing Privacy) Act 2012 .… 1.59 Privacy Amendment (Enhancing Privacy Reform) Act 2012 .… 2.94 Privacy Regulations 2013 reg 8 .… 2.70 Privacy (Tax File Number) Rule 2015 r 8 .… 1.61 r 10 .… 1.61 r 11 .… 1.61 cl 10 .… 6.78 Public Governance, Performance and Accountability Act 2013 .… 11.50 s 46 .… 11.42 Public Interest Disclosure Act 2013 .… 1.7, 1.37 Public Service Regulations 1999 reg 2.1 .… 1.106 reg 2.1(3) .… 1.106 reg 2.1(4) .… 1.106 reg 7(13) .… 8.103 Retirement Savings Accounts Act 1997 Pt 11 .… 1.61, 2.101 Royal Commissions Act 1902 .… 3.18

Shipping Registration Act 1981 s 56 .… 11.73 Spam Act 2003 .… 1.121 Superannuation Industry (Supervision) Act 1993 Pt 25A .… 1.61, 2.101 Surveillance Devices Act 2004 .… 1.136 Tax File Number Rule 2015 .… 2.99, 10.3 cl 7 .… 2.102 cl 8 .… 2.103 cl 9 .… 2.104 cl 10 .… 2.105 cl 11 .… 2.106 cl 12 .… 2.107 cl 13 .… 2.108 cl 14 .… 2.108 Taxation Administration Act 1953 s 8WA .… 2.101, 6.78 s 8WB .… 2.101, 6.78 Telecommunications Act 1997 .… 1.117, 10.4 Pt 6 .… 1.119 Pt 13 .… 1.119 Pt 13, Div 5 .… 1.119 Telecommunications (Interception) Act 1979 .… 2.136 Telecommunications (Interception and Access) Act 1979 .… 1.117, 1.179 s 183(3) .… 1.120

Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 .… 1.179 Terrorism (Community Protection) Act 2003 .… 5.49 Australian Capital Territory Freedom of Information Act 1989 .… 8.132 Pt 2 .… 719 Pt 3 .… 720 Pt 4 .… 720 s 3 .… 719 s 32 .… 5.8 s 37A .… 719 Freedom of Information Regulation 1991 .… 719 Government Procurement Act 2001 .… 6.68 Health Records (Privacy and Access) Act 1997 .… 2.52, 724 Pt 3 .… 723 s 4 .… 723 s 5 .… 722 Human Rights Act 2004 .… 1.102 s 12 .… 724 Human Rights Commission Act 2005 Pt 4 .… 724 Information Privacy Act 2014 .… 1.58, 719 Pt 6 .… 720 Pt 7 .… 719 s 1(1) .… 719

s 8 .… 719 s 9 .… 719 s 10 .… 719 s 12 .… 719 s 14 .… 719 s 15 .… 719 s 16 .… 719 s 17 .… 719 s 18 .… 719 s 19 .… 719 s 26 .… 720 s 28 .… 720 s 43 .… 720 s 45 .… 720 s 47 .… 720 TPP 1 .… 719 TPP 2 .… 719 TPP 3 .… 719 TPP 4 .… 719 TPP 5 .… 719 TPP 6 .… 719 TPP 8 .… 719 TPP 10 .… 719 TPP 11 .… 719 TPP 12 .… 719

TPP 13 .… 719 Listening Devices Act 1992 .… 724 Public Access to Government Contracts Act 2000 .… 6.68 Spent Convictions Act 2000 .… 724 Territory Records Act 2002 Pt 2 .… 724 Pt 3 .… 724 Workplace Privacy Act 2011 .… 724 New South Wales Administrative Decisions Review Act 1997 .… 1.10, 9.102 Ch 3, Pt 3 .… 9.102 Ch 3, Pt 3, Div 2 .… 9.102 Ch 5, Pt 3, Div 3 .… 10.66 s 49 .… 1.34 s 53 .… 9.102, 10.60 s 58 .… 9.102 s 63 .… 9.102 Administrative Decisions Tribunal Act 1997 .… 1.10 Adoption Act 2000 .… 8.133 Adoption Act 2000 .… 8.135 Ch 8 .… 2.136 Annual Reports (Departments) Act 1985 .… 11.44 Annual Reports (Statutory Bodies) Act 1984 .… 11.44 Archives Act 1960 .… 1.142, 1.152 Children and Young Persons (Care and Protection) Act 1998

s 29 .… 8.138 Civil and Administrative Tribunal Act 2013 .… 10.85 s 60(1) .… 10.89 s 60(2) .… 10.89 s 72 .… 10.88 Coroners Act 1980 .… 2.21 Crimes Act 1900 s 91H .… 1.124 s 91I(2) .… 1.124 s 91J(4) .… 1.124 s 91J(5) .… 1.124 s 91K .… 1.124 s 91K(3) .… 1.124 s 91K(4) .… 1.124 s 91L .… 1.124 s 91L(3) .… 1.124 s 91L(4) .… 1.124 s 91M .… 1.124 s 547C .… 1.124 Crimes (Domestic and Personal Violence) Act 2007 .… 6.44 s 8(1) .… 1.125 s 13 .… 1.125 Crimes (Sentencing Procedure) Act 1999 s 17 .… 10.56, 10.68, 10.69, 10.80, 10.88, 10.92 Criminal Records Act 1991 .… 1.115, 8.98

Electronic Networks Asset (Authorised Transaction) Act 2015 .… 8.138 Evidence Act 1995 ss 117–126 .… 1.41 ss 129–131 .… 1.41 Fair Trading Act 1987 .… 1.121 Freedom of Information Act 1989 .… 1.10, 1.11, 1.12, 3.142, 3.146, 3.149, 3.198, 5.15, 6.11, 6.41, 7.12, 7.14, 7.21, 7.57, 7.89, 8.86, 8.106, 8.136, 10.177, 732, 734… s 5 .… 2.9 Sch 1 cl 4(2) .… 8.90 Sch 1 cl 6 .… 6.8 Sch 1 cl 7 .… 6.50 Sch 1 cl 7(1)(b) .… 6.55 exemption 4 .… 8.59, 8.61 exemption 5(a) .… 8.27 exemption 9 .… 7.4 exemption 10 .… 8.105 exemption 12 .… 8.98 exemption 14 .… 8.115 exemption 17 .… 8.118 exemption 18 .… 8.124 exemption 20 .… 8.135 exemption 21 .… 8.132 Freedom of Information (Amendment) Act 1992 .… 1.11 Freedom of Information Amendment (Open Government-Disclosure of

Contracts) Act 2006 .… 1.11 Freedom of Information Amendment (Terrorism and Criminal Intelligence) Act 2004 .… 1.11 Government Information (Information Commissioner) Act 2009 (GIICA) .… 9.118 Pt 3 .… 9.85 Div 3 .… 9.85, 9.115 Div 4 .… 9.85 Div 5 .… 9.85 s 17 .… 9.113 s 18 .… 9.114 s 19 .… 9.115 s 20 .… 9.116 s 22 .… 9.116 s 25 .… 9.119 s 26 .… 9.119 s 27 .… 9.119 s 27(1) .… 9.119 s 28(1) .… 9.120 s 28(2) .… 9.120 s 28(5) .… 9.120 s 30 .… 9.119 s 31 .… 9.121 s 34 .… 9.121 Government Information (Public Access) Act 2009 (GIPA Act) .… 1.3, 1.12, 1.79, 1.147, 1.150, 1.152, 1.164, 1.181, 2.3, 2.5, 2.9, 2.11,

2.13, 2.15, 2.26, 2.29, 2.36, 2.37, 3.1, 3.30, 3.58, 3.140, 3.151, 3.154, 4.6, 4.75, 4.106, 4.108, 4.145, 4.171, 4.175, 5.8, 5.9, 5.15, 6.8, 6.36, 6.57, 6.60, 7.10, 7.25, 7.32, 7.34, 7.35, 7.49, 7.90, 7.116, 8.46, 8.58, 8.61, 8.102, 8.122, 8.124, 8.136, 8.146, 8.148, 9.86, 9.111, 9.113, 9.117, 10.58, 10.177, 11.36, 11.49, 12.25, 12.47 Pt 3 .… 11.7 Pt 5 .… 3.78, 3.138, 8.105, 9.85, 9.102, 9.107 Div 5 .… 1.39 s 3(1) .… 2.7 s 3(2) .… 2.7 s 4 .… 7.41 s 4(1) .… 2.20, 2.34, 3.19 s 7(3) .… 11.45 s 8 .… 3.3 s 9(1) .… 3.6 s 12 .… 2.44, 3.11, 5.23 s 12(2) .… 5.38 s 12(2)(d) .… 5.32 s 13 .… 4.77, 5.22 s 14 .… 1.149, 3.120, 4.77, 6.6, 6.11, 6.31, 6.41, 6.50, 6.55, 6.56, 7.2, 7.4, 7.11, 7.41, 7.51, 7.74, 7.91, 8.2, 8.18, 8.27, 8.98, 8.115, 8.132, 8.137, 9.99 s 14(2) .… 5.4, 5.22, 6.11 s 15 .… 4.77, 5.23 s 15(c) .… 5.24, 7.19, 7.27 s 15(d) .… 5.24

s 15(e) .… 3.10, 5.23, 5.38 s 17 .… 11.9 s 20(3) .… 11.13, 11.14 s 21 .… 11.15 s 21(1) .… 11.9 s 22(1) .… 11.16 s 22(2) .… 11.16 s 23 .… 11.29 s 24 .… 11.30 s 25 .… 11.39 s 26(1) .… 11.40 s 26(2) .… 11.40 s 26(3) .… 11.40 s 27 .… 1.39 s 27(1) .… 11.51 s 28(6) .… 9.120 s 29 .… 11.52 s 30(1) .… 11.51 s 30(2) .… 11.53 s 31 .… 11.51 s 34 .… 8.57 s 37(1)(a) .… 8.56 s 41(1)(c) .… 3.109 s 41(2) .… 3.26 s 41(3) .… 3.28

s 42 .… 3.27 s 44 .… 3.43 s 45 .… 3.43 s 46 .… 3.43 s 47 .… 3.43, 7.40 s 48 .… 3.44 s 51 .… 3.36, 3.78 s 51(4) .… 3.36 s 51(5) .… 3.36 s 51A .… 3.109 s 52(1) .… 3.48 s 52(1)(a) .… 3.78 s 52(1)(d) .… 3.78 s 52(2) .… 3.48, 3.109 s 52(3) .… 3.24 s 53 .… 3.86 s 53(3) .… 3.86 s 53(4) .… 3.86 s 53(5) .… 3.86 s 54 .… 3.126, 3.131 s 54(2)(d) .… 8.37 s 55 .… 5.38 s 55(1) .… 3.10 s 55(3) .… 3.10 s 55(5) .… 3.10

s 55(6) .… 3.10 s 57 .… 3.34 s 57(1) .… 3.36 s 57(2) .… 3.36 s 57(3) .… 3.36 s 57(4) .… 3.36 s 58 .… 3.67 s 58(1)(d) .… 5.22 s 58(1)(f) .… 3.67 s 59(2) .… 3.78 s 60 .… 3.111 s 60(1)(a) .… 3.84, 3.91 s 60(1)(b) .… 3.84 s 60(1)(b1) .… 3.84 s 60(1)(d) .… 3.84 s 60(3) .… 3.91 s 60(4) .… 3.24, 3.49, 3.91 s 60(5) .… 3.78, 3.91 s 60(6) .… 3.91, 3.111 s 61 .… 3.63, 3.78 s 62 .… 3.78 s 63(1) .… 3.34 s 63(3) .… 3.34 s 63(4) .… 3.34 s 64(1) .… 3.110

s 64(2) .… 3.110 s 64(3) .… 3.110 s 65 .… 3.111 s 66(1) .… 3.111 s 66(2) .… 3.111 s 67 .… 3.110 s 68(3) .… 3.111 s 69(1) .… 3.111 s 69(2) .… 3.111 s 70 .… 3.111 s 70(2) .… 3.78 s 71 .… 3.111 s 72(1) .… 3.69, 3.70 s 72(2)(d) .… 3.70 s 73(1) .… 3.7 s 73(2) .… 3.7 s 73(3) .… 3.7, 3.137, 6.35, 6.38 s 74 .… 3.55 s 75(1) .… 2.32, 3.69 s 75(2) .… 2.32, 3.69 s 78(1) .… 3.61 s 78(2) .… 3.61 s 78(3) .… 3.78 s 78(4) .… 3.61 s 80 .… 9.87

s 80(i) .… 3.138 s 81 .… 9.90, 9.95, 9.104 s 82 .… 9.88 s 83 .… 9.90 s 84 .… 9.89 s 85(1) .… 9.91 s 85(2) .… 9.91 s 87 .… 9.91, 9.92 s 89 .… 9.95 s 89(2) .… 9.89 s 90 .… 9.95 s 91 .… 9.97 s 92 .… 9.100 s 93 .… 9.100 s 93(3) .… 9.101 s 93(4) .… 9.101 s 93(5) .… 9.101 s 93(6) .… 9.101 s 94 .… 9.100 s 94(2) .… 9.99 s 94(3) .… 9.97 s 95 .… 9.100 s 96 .… 9.96 s 97 .… 9.98 s 99 .… 9.100

s 100 .… 9.103 s 101(1) .… 9.104 s 101(2) .… 9.104 s 101(4) .… 9.104 s 101(5) .… 9.104 s 101(6) .… 9.104 s 104 .… 9.107 s 105 .… 5.39, 9.108 s 106 .… 9.109 s 106(1) .… 9.109 s 107 .… 9.110 s 108 .… 9.105 s 109 .… 9.106, 9.112 s 110(2) .… 9.112 s 113(1)(a) .… 3.145 s 113(2) .… 3.147 s 113(2)(b) .… 3.146 s 114 .… 3.147 s 115 .… 3.148 s 121 .… 2.15 s 121(2) .… 2.15 s 125(1) .… 11.44 s 127 .… 3.109 Sch 1 .… 2.43, 5.4, 6.6, 7.2, 8.2, 8.137, 8.138, 9.109, 11.45 Sch 1 cl 1 .… 1.107, 2.15, 8.98

Sch 1 cl 2 .… 8.41 Sch 1 cl 2(c) .… 8.42 Sch 1 cl 2(e) .… 8.42 Sch 1 cl 2(1)(a) .… 8.42 Sch 1 cl 2(1)(b) .… 8.42 Sch 1 cl 2(1)(c) .… 8.45, 8.51 Sch 1 cl 2(1)(d) .… 8.42, 8.49 Sch 1 cl 2(1)(e) .… 8.51 Sch 1 cl 2(1)(f) .… 8.42 Sch 1 cl 2(2)(a) .… 8.43 Sch 1 cl 2(2)(b) .… 8.57 Sch 1 cl 2(4) .… 8.43, 8.53 Sch 1 cl 3 .… 8.41 Sch 1 cl 3(1)(a) .… 8.42 Sch 1 cl 3(1)(b) .… 8.42 Sch 1 cl 3(1)(c) .… 8.42 Sch 1 cl 3(1)(d) .… 8.42 Sch 1 cl 4 .… 8.118 Sch 1 cl 5 .… 8.105 Sch 1 cl 5(3) .… 8.105 Sch 1 cl 5(5) .… 8.105 Sch 1 cl 6 .… 6.123 Sch 1 cl 6.1 .… 6.65 Sch 1 cl 7 .… 6.123, 8.86 Sch 1 cl 7(a) .… 2.21

Sch 1 cl 7(b) .… 2.21 Sch 1 cl 8 .… 8.138 Sch 1 cl 10 .… 8.138 Sch 1 cl 11 .… 8.138 Sch 1 cl 12(1) .… 8.138 Sch 1 cl 12(2) .… 8.138 Sch 1 cl 12(3) .… 8.138 Sch 1 cl 12(4) .… 8.138 Sch 1 cl 13 .… 6.123, 8.138 Sch 2 .… 2.43, 11.45 Sch 2 cl 7(c) .… 2.22 Sch 2 cl 7(d) .… 2.22 Sch 2 cl 7(e) .… 2.22 Sch 4 cl 1 .… 2.21, 6.50, 7.43 Sch 4 cl 3 .… 2.20 Sch 4 cl 3(1) .… 2.20 Sch 4 cl 3(2) .… 2.20 Sch 4 cl 4 .… 6.13 Sch 4 cl 4(1) .… 6.13 Sch 4 cl 4(2) .… 6.13 Sch 4 cl 4(3) .… 6.13 Sch 4 cl 5 .… 2.20 Sch 4 cl 6 .… 2.20 Sch 4 cl 6A .… 2.20 Sch 4 cl 8 .… 2.20

Sch 4 cl 9 .… 8.135 Sch 4 cl 10 .… 2.34 Sch 4 cl 10(3) .… 2.34 Sch 4 cl 11 .… 3.19 Sch 4 cl 12 .… 3.16 Sch 4 cl 12(2) .… 2.44, 3.19 Sch 4 cl 12(3) .… 2.44, 3.19 Sch 4 cl 13(3) .… 2.44 Sch 4 cl 14 .… 3.19 Sch 4 cl 14(2) .… 3.19 Sch 4 cl 14(3) .… 3.19 cl 1(a) .… 7.4, 8.41 cl 1(b) .… 7.4 cl 1(c) .… 8.18, 8.27 cl 1(d) .… 7.74, 7.91, 7.92 cl 1(e) .… 7.4, 7.5 cl 1(g) .… 7.74, 7.88 cl 2 .… 8.59 cl 2(a) .… 8.59, 8.65 cl 2(b) .… 8.59, 8.77 cl 2(d) .… 8.59, 8.73, 8.85 cl 2(e) .… 8.59, 8.85 cl 2(f) .… 8.59, 8.85 cl 2(g) .… 8.59, 8.85 cl 2(h) .… 8.59, 8.85

cl 3 .… 6.41, 8.59 cl 3(a) .… 6.11, 9.99 cl 3(b) .… 6.31, 6.41, 6.42, 9.99 cl 3(d) .… 6.41, 8.59, 8.76 cl 3(e) .… 6.41 cl 3(f) .… 6.41 cl 3(g) .… 6.41 cl 4 .… 1.157, 6.50, 7.41 cl 4(a) .… 7.42 cl 4(b) .… 6.50, 7.43 cl 4(c) .… 6.50, 6.55 cl 4(d) .… 6.50, 6.56 cl 4(e) .… 6.43, 7.51 cl 4(f) .… 6.44, 6.45 cl 5(d) .… 8.115 cl 5(e) .… 8.115 cl 6(1) .… 8.98 cl 6(2) .… 8.98 cl 7(3) .… 8.132 cl 14 .… 8.138 Government Information (Public Access) Regulation 2009 .… 3.98 reg 4 .… 3.69 reg 6 .… 3.36 reg 7 .… 11.45 reg 9 .… 3.111

reg 10 .… 8.132 Sch 1 .… 11.14 Guardianship Act 1987 Pt 5 .… 4.111 Health Records and Information Privacy Act 2002 (HRIP Act) .… 1.56, 1.80, 1.145, 1.147, 1.148, 1.164, 2.52, 2.53, 2.172, 2.186, 3.168, 4.2, 4.7, 4.80, 6.41, 10.93, 10.96, 10.97, 10.163 Pt 4 .… 2.169, 10.87 Pt 4, Div 3 .… 4.103, 4.105, 4.109 Pt 4, Div 4 .… 4.103, 4.105, 4.124 Pt 6 .… 10.76 s 3 .… 2.166 s 3(1) .… 2.166 s 4(1) .… 2.165, 4.106 s 4(1)(a)–(f) .… 4.106 s 5(1) .… 2.168 s 5(2) .… 2.168 s 5(3) .… 2.168 s 5(3)(a) .… 4.107 s 5(3)(d) .… 1.157 s 5(3)(o) .… 2.168 s 6 .… 2.167 s 7 .… 4.111 s 8(1) .… 4.111 s 8(2) .… 4.111

s 9 .… 2.165, 2.169 s 9(a) .… 4.104 s 9(b) .… 4.104 s 9(c) .… 1.157, 4.104 s 10 .… 2.165, 2.169 s 13 .… 2.171 s 14 .… 2.169 s 15 .… 2.169 s 17 .… 2.171, 8.149 s 19(3) .… 2.165, 4.105 s 20 .… 1.157 s 21(1) .… 10.75 s 22 .… 4.108, 6.123, 7.116, 8.148 s 22(1) .… 6.123 s 22(3) .… 4.108, 6.123, 7.116 s 26 .… 4.109 s 27(5) .… 4.116 s 28(1) .… 4.113 s 28(2) .… 4.113 s 28(3) .… 4.113 s 28(4) .… 4.113 s 29 .… 4.115, 8.150 s 29(a) .… 4.114 s 29(b) .… 6.123 s 29(d) .… 7.117

s 29(e) .… 6.123 s 30 .… 4.114 s 31 .… 4.110 s 32(1) .… 4.112 s 32(2) .… 4.112 s 33 .… 4.120 s 34(1) .… 4.121 s 34(2) .… 4.121 s 34(3) .… 4.121 s 34(4) .… 4.121 s 34(5) .… 4.121 s 35 .… 4.122 s 35(1) .… 4.122 s 35(2) .… 4.122 s 35(3) .… 4.122 s 35(4) .… 4.122 s 36 .… 4.123 s 37(1) .… 4.124 s 37(2) .… 4.124 s 38 .… 2.174 s 38(3) .… 1.157 s 38(6)(b) .… 2.174 s 42(1) .… 10.76 s 42(2) .… 10.76 s 42(3) .… 10.76

s 43(1) .… 10.77 s 43(2) .… 10.77 s 44(2) .… 10.77 s 44(3) .… 10.77 s 45(1) .… 10.78 s 45(2) .… 10.78 s 45(3) .… 10.78 s 46 .… 10.78 s 46(3) .… 10.80 s 46(4) .… 10.81 s 46(5) .… 10.81 s 46(6) .… 10.81 s 47 .… 10.78, 10.82 s 47(3) .… 10.82 s 48(1) .… 10.82 s 48(2) .… 10.82 s 48(3) .… 10.82 s 50 .… 10.85 s 51 .… 10.85 s 52 .… 10.86 s 53 .… 10.85 s 54(1) .… 10.87 s 54(2) .… 10.87 s 54(3) .… 10.87 s 59(1) .… 10.83

s 59(2) .… 10.83 s 59(3) .… 10.83 s 59(4) .… 10.83 s 60(1) .… 10.83 s 60(2) .… 10.83 s 60(3) .… 10.84 s 60(5) .… 10.84 s 60(6) .… 10.84 s 61(a) .… 10.84 s 61(b) .… 10.84 s 61(c) .… 10.84 s 61(d) .… 10.84 s 62 .… 2.175 ss 65–67 .… 10.79 s 68 .… 10.91 ss 68–70 .… 10.90 s 68(2) .… 10.91 s 69 .… 10.91 s 69(2) .… 10.91 s 70 .… 10.92 s 71(1) .… 10.95 s 71(2) .… 10.95 s 72(1) .… 10.94 s 72(2) .… 10.94 s 73 .… 4.116

s 74 .… 10.90 HPP 1 .… 2.177, 704 HPPs 1–4 .… 2.165, 2.169, 2.176 HPP 2 .… 2.178, 706 HPP 3 .… 2.179, 706 HPP 4 .… 1.157, 2.180, 705 HPP 5 .… 1.157, 2.181, 706 HPP 6 .… 1.157, 2.183, 11.63, 706 HPPs 6–8 .… 2.169 HPP 6.2 .… 11.63 HPP 7 .… 1.157, 2.184, 4.103–4.105, 4.108, 6.123, 7.116, 8.150, 706 HPPs 7–8 .… 2.165 HPP 7(1) .… 4.108 HPP 8 .… 1.157, 2.185, 4.103–4.105, 4.117, 4.119, 707 HPP 8(1) .… 4.117 HPP 8(2) .… 4.118 HPP 8(3) .… 4.119 HPP 8(4) .… 4.117 HPP 9 .… 2.182, 707 HPP 10 .… 2.169, 2.187, 707 HPP 11 .… 1.157, 2.169, 2.188, 6.88, 708 HPP 11.1 .… 6.89, 6.96 HPP 11.1(c) .… 6.91 HPP 11.1(d) .… 6.92 HPP 11.1(e) .… 6.92

HPP 11.1(f) .… 6.92 HPP 11.1(g) .… 6.93 HPP 11.1(h) .… 6.94 HPP 11.1(i) .… 6.94 HPP 11.1(j) .… 6.95 HPP 11.1(k) .… 6.95 HPP 11.1(l) .… 6.89 HPP 11.2 .… 6.89, 6.96 HPP 11.3 .… 6.96 HPP 11.4 .… 6.96 HPP 11.6 .… 6.95, 6.96 HPP 12 .… 2.189, 709 HPP 13 .… 2.165, 2.191, 709 HPP 14 .… 2.169, 2.190, 6.88, 6.97, 709 HPP 14(c) .… 6.98 HPP 14(d) .… 6.98 HPP 14(e) .… 6.99 HPP 14(f) .… 6.99 HPP 14(g) .… 6.100 HPP 14(h) .… 6.101 HPP 15 .… 2.165, 2.192, 710 Sch 1 .… 2.165, 2.169, 2.173, 4.105, 6.88, 8.150, 704 Health Records and Information Privacy Code of Practice 2005 .… 2.174 Health Records and Information Privacy Regulation 2012 .… 2.168

Interpretation Act 1987 s 21 .… 1.73 Judicial Officers Act 1986 s 37A .… 8.138 Law Enforcement (Controlled Operations) Act 1997 .… 2.136 Local Government Act 1993 .… 1.11, 2.226 Ch 6, Pt 2, Div 2 .… 8.138 ss 9–11 .… 1.24 s 36DA(2) .… 8.138 National Parks and Wildlife Act 1974 s 161 .… 8.138 Ombudsman Act 1974 .… 1.10, 9.121, 10.177 Passenger Transport Act 1990 s 46BA .… 8.138 s 46BC .… 8.138 Police Service Act 1990 .… 2.136, 2.168 Privacy and Government Information Legislation Amendment Act 2010 .… 1.70 Privacy and Personal Information Protection Act 1998 (PPIP) .… 1.56, 1.68, 1.79, 1.80, 1.88, 1.145, 1.147, 1.149, 1.164, 2.51, 2.131, 2.142, 2.147, 2.176, 2.186, 2.191, 3.154, 4.2, 4.7, 4.77, 4.108, 4.145–4.147, 6.41, 6.123, 10.65, 10.75, 10.90, 10.93, 10.96 Pt 2 .… 4.73 Pt 2, Div 3 .… 4.79 Pt 3 .… 4.5 Pt 4, Div 3 .… 1.71

Pt 6 .… 1.75 Pt 6A .… 1.70 s 3 .… 2.133, 4.75 s 3(1)(a)–(f) .… 4.75 s 3(1)(g) .… 4.75 s 4 .… 2.136 s 4(1) .… 2.136 s 4(3)(a) .… 4.76 s 4(3)(b) .… 1.156 s 4(4) .… 4.74 s 4(4)(c) .… 1.156 s 4(5) .… 2.138 s 4A .… 1.69 s 5 .… 4.77, 8.146 s 6(1) .… 2.135 s 6(2) .… 2.135 s 6(3) .… 2.135 s 8 .… 2.138 ss 8–10 .… 2.138 ss 8–11 .… 4.74 ss 8–19 .… 1.69, 2.53, 2.137, 701 s 9 .… 2.138 s 10 .… 2.138 s 12 .… 2.139 s 12(c) .… 2.134

s 13 .… 2.140, 11.62 s 14 .… 2.141, 4.73, 4.77, 4.78, 6.122, 7.115, 8.146 s 15 .… 1.156, 2.141, 4.73, 4.80, 4.81 s 15(1) .… 4.80 s 15(3) .… 4.82 s 15(4) .… 1.156, 4.80 s 16 .… 2.139 s 17 .… 2.138, 2.143 s 18 .… 2.138, 2.144, 6.83, 6.84 s 18(1) .… 6.84, 6.85, 6.86 s 18(1)(c) .… 6.84 s 18(2) .… 6.85 s 19 .… 2.138, 2.145, 2.146, 6.83 s 19(1) .… 6.86 s 19(2) .… 6.87 s 19(3) .… 6.87 s 20(2) .… 4.73 s 20(3) .… 4.74 s 20(5) .… 4.77, 8.146 s 21 .… 10.72 s 23(2) .… 2.135 s 25 .… 1.156, 6.122, 7.115, 8.146 s 25(b) .… 4.80 s 27 .… 8.147 s 28(3)(b) .… 2.132

s 29 .… 1.72 s 29(3) .… 1.156 s 29(7)(b) .… 1.73 s 30(2)(c) .… 1.73 s 31 .… 1.72 s 32 .… 10.72 s 33 .… 1.76 s 36 .… 11.68 s 36(2)(b) .… 1.71 s 36(2)(l) .… 10.52 s 37 .… 10.58 s 37(2) .… 10.58 s 37(3) .… 10.58 s 37(4) .… 10.58 s 38(1) .… 10.59 s 38(2) .… 10.59 s 38(4) .… 10.58 s 38(5) .… 10.59 s 38(6) .… 10.59 s 39 .… 10.59 s 40 .… 1.71, 11.62 s 41 .… 1.78 s 43(1) .… 10.58 s 43(2) .… 10.58 s 45 .… 1.77, 10.74

s 45(1) .… 10.52 s 45(2) .… 10.52, 10.53 s 46(1) .… 10.54 s 46(2) .… 10.54 s 46(3) .… 10.54 s 47 .… 10.55, 10.79 s 48(2) .… 10.54, 10.55 s 49(1) .… 10.56 s 49(2) .… 10.56 s 49(3) .… 10.56 s 49(4) .… 10.56 s 49(5) .… 10.56 s 50(1) .… 10.57 s 50(2) .… 10.57 s 51 .… 10.54 s 52 .… 10.60 s 53(1) .… 10.61 s 53(2) .… 10.62 s 53(4) .… 10.61 s 53(6) .… 10.61 s 53(7) .… 10.62 s 53(7A) .… 10.62 s 53(8) .… 10.62 s 54(1) .… 10.63 s 54(2) .… 10.63

s 54(3) .… 10.61 s 54(4) .… 10.61 s 54(5) .… 10.62 s 55 .… 10.74 s 55(1) .… 10.64 s 55(2) .… 10.66 s 55(4) .… 10.66 s 55(4A) .… 10.66 s 55(5) .… 10.67 s 55(6) .… 10.64 s 55(7) .… 10.64 s 57 .… 1.75 s 61A .… 11.66 s 61B .… 11.66 s 61C .… 11.66 s 62 .… 10.68 s 63 .… 10.68 s 63(2) .… 10.68 s 66 .… 10.70 s 66A(1) .… 10.71 s 66A(2) .… 10.70 s 66A(3) .… 10.70 s 67(1) .… 10.69 s 67(2) .… 10.69 s 67(3) .… 10.69

s 68(1) .… 10.69 s 68(2) .… 10.69 s 68(3) .… 10.69 s 69 .… 10.72 Privacy and Personal Information Protection Regulation 2014 .… 2.136 Privacy Code of Practice (General) 2003 .… 1.74 Privacy Committee Act 1995 .… 1.67, 1.68 Protected Disclosures Act 1994 .… 1.10, 1.37, 10.68 Public Interest Disclosures Act 1994 .… 2.136, 10.91 State Records Act 1998 .… 1.138, 1.142, 1.152, 2.168, 2.169, 2.224, 3.86, 4.2, 4.74, 4.104, 4.189, 5.55, 5.56, 6.89, 8.146, 12.47 Pt 4 .… 2.229 Pt 5 .… 2.229 Pt 6 .… 4.171 s 3 .… 2.225 s 3(1) .… 2.225–2.227 s 4 .… 2.227 s 5(1) .… 2.225 s 5(2) .… 2.225 s 9 .… 2.226 s 10A .… 2.231 s 11 .… 2.228 s 12 .… 2.228, 12.41 s 13 .… 2.228, 12.41 s 14 .… 2.226, 2.228

s 21 .… 1.157, 4.80, 4.117 s 21(1)(d) .… 4.80 s 21(2) .… 2.226 s 24 .… 2.228 s 49(1) .… 4.173 s 49(2) .… 4.173 s 50 .… 4.176 s 51(1A) .… 4.172 s 51(2) .… 4.176 s 51(3) .… 4.176 s 51(4) .… 4.171 s 52 .… 1.156, 1.157 s 52(1) .… 4.172, 6.129, 7.127, 8.162 s 52(1A) .… 4.172 s 52(2A) .… 4.172 s 52(4) .… 4.181, 6.129, 7.127, 8.162 s 52(A) .… 6.130, 7.128, 8.163 s 54 .… 10.178 s 54(1) .… 4.176, 10.175 s 54(2) .… 4.176 s 54(3) .… 4.174, 4.176, 10.175 s 54(5) .… 4.176 s 55 .… 4.176 s 55(6) .… 4.177 s 56 .… 4.171, 4.177, 10.177

s 57 .… 2.231, 4.178 s 58 .… 2.231, 4.171 s 59 .… 4.175, 4.181, 4.182 s 59(2) .… 4.171 s 59(3) .… 4.175 s 59(5) .… 4.175 s 60(2) .… 4.180 s 60(3) .… 4.180 s 60(4) .… 4.180 s 60(5) .… 4.182 s 61 .… 4.176, 11.70 s 62 .… 2.231 s 62(1) .… 4.184 s 62(1)(b) .… 4.184 s 62(1)(c) .… 4.184 s 62(1)(d) .… 4.184 s 62(2) .… 4.184 Supreme Court Act 1970 s 69 .… 9.111 Surveillance Devices Act 2007 .… 1.137 s 4(1) .… 1.132 s 7 .… 1.132 s 8 .… 1.132 s 9 .… 1.132 s 10 .… 1.132

s 11 .… 1.132 s 11(2) .… 1.132 s 12 .… 1.132 s 13 .… 1.132 s 14 .… 1.132 s 14(2) .… 1.132 Terrorism (Police Powers) Act 2002 .… 8.59 Threatened Species Conservation Act 1995 s 146 .… 8.138 s 146A .… 8.138 Witness Protection Act 1995 .… 2.136 Workplace Surveillance Act 2005 .… 1.133 Northern Territory Criminal Records (Spent Convictions) Act 1992 .… 728 Health and Community Services Complaints Act 1998 s 104(3) .… 728 Information Act 2002 .… 8.132 Pt 2 .… 723 Pt 3 .… 723 Pt 4 .… 723, 724 Pt 9 .… 726 s 4 .… 724, 725 s 5 .… 725 s 30 .… 724 s 47 .… 724

ss 59–64 .… 724 ss 72–80 .… 724 s 81 .… 724 s 81A .… 724 s 104 .… 725 s 115 .… 725 s 129 .… 725 IPP 1 .… 724 IPP 2 .… 724 IPP 3 .… 724 IPP 4 .… 724 IPP 5 .… 725 IPP 6 .… 725 IPP 7 .… 725 IPP 8 .… 725 IPP 9 .… 725 IPP 10 .… 725 Information Act Regulations 2003 .… 723 Mental Health and Related Services Act 1998 s 8(b) .… 726 s 13(a) .… 726 Surveillance Devices Act 2007 .… 726 Queensland Criminal Law (Rehabilitation of Offenders) Act 1986 .… 731 Freedom of Information Act 1992 .… 7.87, 8.123

s 4 .… 732 Information Privacy Act 2009 .… 729 s 12 .… 730 s 17 .… 730 s 40(1) .… 730 s 178(a) .… 731 Sch 1 .… 730 Sch 2 .… 730 Sch 3 .… 730 IPP 1 .… 730 IPP 2 .… 730 IPP 3 .… 730 IPP 4 .… 730 IPP 5 .… 730 IPP 6 .… 730 IPP 7 .… 730 IPP 8 .… 730 IPP 9 .… 730 IPP 10 .… 730 IPP 11 .… 730 Invasion of Privacy Act 1971 .… 731 Public Records Act 2002 s 7 .… 731 s 8 .… 731 s 13 .… 731

s 16 .… 731 s 17 .… 731 Right to Information Act 2009 .… 8.132, 730 Pt 1 .… 728 Pt 2 .… 728 Pt 3 .… 728 Pt 4 .… 728 s 3 .… 727 s 6 .… 727 ss 14–16 .… 726 s 17 .… 726 s 18 .… 727 s 23 .… 727 s 37 .… 727 s 47(2)(a) .… 728 s 47(3)(a) .… 728 s 48 .… 727 s 48(1) .… 727 s 49 .… 727, 728 ss 50–51 .… 727 s 58 .… 727 ss 78–78B .… 727 Sch 3 .… 728 Sch 3, cl 1 .… 728 Sch 3, cl 2 .… 728

Sch 3, cl 3 .… 728 Sch 3, cl 4 .… 728 Sch 3, cl 4A .… 728 Sch 3, cl 4B .… 728 Sch 3, cl 5 .… 728 Sch 3, cl 6 .… 728 Sch 3, cl 7 .… 729 Sch 3, cl 8 .… 729 Sch 3, cl 9 .… 729 Sch 3, cl 10 .… 729 Sch 3, cl 11 .… 729 Sch 3, cl 12 .… 727, 729 Sch 4 .… 728 Sch 4, Pt 2 .… 727 Sch 4, Pt 2, item 7 .… 727 South Australia Freedom of Information Act 1991 .… 8.132, 731, 736, 737 Pt 2 .… 732 Pt 3 .… 732 s 3 .… 732 s 14 .… 732 s 14A .… 732 s 20 .… 732 ss 25–28 .… 732 ss 30–37 .… 734

s 39 .… 735 ss 41 .… 735 Sch 1 .… 732 Sch 1, cl 1 .… 733 Sch 1, cl 2 .… 733 Sch 1, cl 3 .… 733, 734 Sch 1, cl 4 .… 733, 734 Sch 1, cl 4(2) .… 8.90 Sch 1, cl 5 .… 733 Sch 1, cl 6 .… 733, 734 Sch 1, cl 6A .… 733 Sch 1, cl 7 .… 733, 734 Sch 1, cl 8 .… 733 Sch 1, cl 9 .… 733, 734 Sch 1, cl 10 .… 733 Sch 1, cl 11 .… 733 Sch 1, cl 12 .… 733, 734 Sch 1, cl 13 .… 733 Sch 1, cl 14 .… 733 Sch 1, cl 15 .… 733 Sch 1, cl 16 .… 733 Sch 1, cl 17 .… 733 Sch 1, cl 18 .… 733 Sch 1, cl 19 .… 733 Sch 2 .… 732

Freedom of Information (Exempt Agency) Regulations 2008 .… 731 Freedom of Information (Fees and Charges) Regulations 2003 .… 731 Freedom of Information (General) Regulations 2002 .… 731 Listening and Surveillance Devices Act 1972 .… 736 Spent Convictions Act 2009 .… 736 State Records Act 1997 Pt 5 .… 736 Pt 6 .… 737 Pt 8 .… 737 s 26 .… 737 State Records Regulations 2013 .… 736 Supported Residential Facilities Act 1992 s 7(d) .… 736 Telecommunications (Interception) Act 2012 .… 736 Tasmania Annulled Convictions Act 2003 .… 742 Archives Act 1983 s 10 .… 742 s 11 .… 742 s 12 .… 742 s 15 .… 743 s 18 .… 743 Freedom of Information Act 2009 s 30(2) .… 8.90

Health Complaints Act 1995 s 17 .… 742 Listening Devices Act 1991 .… 742 Personal Information Protection Act 2004 s 3 .… 741, 742 s 3A .… 741 s 7 .… 742 s 8 .… 741 s 9 .… 742 s 17 .… 741 Sch 1 .… 741 IPP 1 .… 741 IPP 2 .… 741 IPP 3 .… 741 IPP 4 .… 741 IPP 5 .… 741 IPP 6 .… 741 IPP 7 .… 741 IPP 8 .… 741 IPP 9 .… 741 IPP 10 .… 741 Right to Information Act 2009 .… 8.132, 741 Pt 2 .… 738 Pt 3 .… 738 Pt 3, Div 1 .… 738

Pt 3, Div 2 .… 738 s 3 .… 737 s 5 .… 738 s 6 .… 737 s 8 .… 737 s 12 .… 738 s 15 .… 738 s 16 .… 738 s 22(3) .… 740 s 25 .… 738 s 26 .… 738 s 27 .… 739 s 28 .… 739 s 29 .… 739 s 30 .… 739 s 30(1) .… 740 s 31 .… 739 s 32 .… 739 s 33(1) .… 739 s 34 .… 739, 740 s 35 .… 739, 740 s 36 .… 738, 739 s 36(2) .… 740 s 37 .… 738, 739 s 38 .… 739

s 39 .… 739 s 40 .… 739, 740 s 41 .… 739 s 42 .… 740 Sch 1 .… 739 Sch 2 .… 739 Telecommunications (Interception) Tasmania Act 1999 .… 742 Victoria Administrative Appeals Tribunal Act 1984 .… 1.13 Administrative Law Act 1978 .… 1.13 s 3 .… 9.161 s 8 .… 1.34 Adoption Act 1984 .… 8.133, 8.134 s 84 .… 2.23 Australian Consumer Law and Fair Trading Act 2012 .… 1.121 Charter of Human Rights and Responsibilities Act 2006 .… 1.102, 1.160 s 13 .… 1.110 s 13(a) .… 1.110 s 38 .… 1.110 Commissioner for Law Enforcement Data Security Act 2005 .… 2.148 Constitution Act 1975 s 95 .… 8.103 Corrections Act 1986 s 9F .… 2.23

Crimes Act 1958 s 21A .… 1.127 s 68 .… 1.128 ss 247B–247JH .… 1.128 Equal Opportunity Act 2010 .… 10.100 Evidence Act 2008 .… 8.105, 8.113 Pt 2 cl 8 .… 2.232 ss 117–126 .… 1.41 ss 129–131 .… 1.41 Financial Management Act 1994 .… 11.46 Freedom of Information (Access Charges) Regulations 2014 .… 3.98, 3.112 reg 7 .… 3.70 reg 8 .… 3.117 reg 9 .… 3.117 Sch .… 3.114 Freedom of Information Act 1982 .… 1.3, 1.14, 1.147, 1.148, 1.153, 1.165, 1.181, 2.3, 2.9, 2.36, 2.37, 2.50, 3.1, 3.4, 3.7, 3.9, 3.12, 3.13, 3.15, 3.19, 3.38, 3.56, 3.79, 3.112, 3.151, 3.153, 3.159, 3.161, 3.165, 3.183, 3.184, 3.189, 3.193, 3.198, 3.199, 4.7, 4.87, 4.96, 4.129, 5.3, 5.8, 6.19, 6.20, 6.36, 6.52, 6.59, 6.60, 6.105, 6.124, 6.125, 7.4, 7.13, 7.28, 7.49, 7.53, 7.104, 7.118, 7.119, 8.36, 8.60, 8.78, 8.106, 8.112, 8.115, 8.118, 8.132, 8.136, 8.151, 8.155, 9.124, 9.158, 10.179, 10.180, 11.2, 11.10, 11.25, 11.54 Pt IV .… 2.46 Pt V .… 11.20 s 3 .… 2.8, 2.11, 9.138 s 3(1) .… 2.8

s 3(1)(a) .… 2.8 s 3(1)(b) .… 2.8, 5.2 s 3(2) .… 2.8 s 5 .… 2.23, 2.35 s 5(1) .… 2.45, 2.46, 3.20, 8.129 s 5(2) .… 2.23 s 5(3) .… 2.23 s 5(4) .… 2.23 s 6 .… 2.23, 4.84 s 6AA .… 2.23 s 6C(1) .… 9.122 s 6C(3) .… 9.133 s 6L(1) .… 9.123 s 6L(3) .… 9.123 s 6L(4) .… 9.123 s 6M .… 9.123 s 7(1) .… 11.17 s 7(1A) .… 11.17 s 7(1)(a)(i) .… 11.18 s 7(1)(a)(ii) .… 11.18 s 7(1)(a)(iii) .… 11.18 s 7(1)(a)(iv) .… 11.19 s 7(1)(a)(v) .… 11.18 s 7(1)(a)(vi) .… 11.18 s 7(1)(a)(vii) .… 11.19

s 7(1)(a)(viii) .… 11.19 s 7(2) .… 11.17 s 7(3) .… 11.20 s 7(4AA) .… 11.17 s 7(6) .… 11.18 s 7(7) .… 11.18 s 8 .… 11.11 s 8(1) .… 7.29, 9.155, 11.32 s 8(2) .… 11.31, 11.33 s 8(2)(a)(ii) .… 11.33 s 8(3) .… 11.33 s 8(4) .… 11.33 s 8(5) .… 11.33, 11.34 s 9 .… 11.35 s 10 .… 11.26 s 10(1) .… 11.21 s 10(2) .… 11.21 s 11 .… 11.11, 11.22 s 11(1) .… 9.155, 11.23 s 11(2) .… 11.22 s 11(3) .… 11.24 s 11(4) .… 11.22 s 12 .… 9.155 s 12(1) .… 9.143, 11.11, 11.46 s 12(2) .… 11.11

s 12(3)(a) .… 11.11 s 12(3)(b) .… 11.11 s 13 .… 3.6 s 14 .… 2.47, 6.8 s 14(2) .… 3.21 s 15 .… 2.49 s 15(1) .… 2.49, 3.21, 3.45 s 15(3) .… 2.49 s 16 .… 9.138 s 16(2) .… 3.3, 5.2 s 17 .… 3.114 s 17(1) .… 3.29 s 17(2) .… 3.30 s 17(2A) .… 3.29, 3.113 s 17(2B) .… 3.113 s 17(3) .… 3.24 s 17(4) .… 3.24 s 18 .… 3.37 s 18(1) .… 3.45 s 18(2) .… 3.45 s 18(3) .… 3.37, 3.45 s 18(4) .… 3.45 s 19 .… 2.32, 3.69, 3.116 s 21 .… 3.34, 3.37 s 22 .… 3.114, 3.116

s 22(1)(a) .… 3.116 s 22(1)(e) .… 3.116 s 22(1)(g) .… 3.115 s 22(1)(h) .… 3.116 s 22(1)(i) .… 3.115 s 22(2) .… 3.117 s 22(3) .… 3.117 s 22(5) .… 3.37, 3.117 s 22(6) .… 3.37, 3.117 s 23(1) .… 3.69 s 23(1)(e) .… 3.69 s 23(2) .… 3.70 s 23(3) .… 3.70 s 23(4) .… 3.70 s 23(6) .… 3.71 s 24 .… 3.88, 3.89 s 24(1) .… 3.62 s 24(2) .… 3.62 s 24A .… 3.84, 3.89 s 24AA .… 3.88 s 24AB .… 3.88, 3.90 s 25A .… 3.84, 3.92, 3.93, 3.95 s 25A(3) .… 3.95 s 25A(4) .… 3.95 s 25A(5) .… 3.84, 3.93

s 25A(6) .… 3.50 s 26 .… 3.33, 3.149, 3.150 s 26(1) .… 3.176 s 26(2) .… 3.176 s 27(1) .… 3.57, 3.63 s 27(1)(a) .… 3.82, 3.182 s 27(1)(b) .… 3.81, 3.182 s 27(1)(c) .… 3.82 s 27(1)(d) .… 3.82 s 27(1)(da) .… 3.81 s 27(1)(e) .… 3.82 s 27(2)(a) .… 3.82 s 27(2)(b) .… 3.68, 3.82 s 28 .… 3.68, 5.41, 5.47, 5.48, 5.49, 5.50, 8.41, 8.129, 8.130, 9.142, 9.151, 9.156, 9.157, 10.111, 10.116, 10.153 s 28(1) .… 9.156, 10.111, 10.112 s 28(1)(a) .… 8.42 s 28(1)(b) .… 8.45, 8.47 s 28(1)(ba) .… 8.42, 8.50 s 28(1)(c) .… 8.42 s 28(1)(d) .… 8.42, 8.49 s 28(2) .… 8.57 s 28(3) .… 8.53 s 28(4) .… 3.68, 5.48, 9.156 s 28(5) .… 5.48 s 29 .… 5.12, 5.25, 8.19, 8.20, 8.21

s 29(a) .… 8.32 s 29(1) .… 8.32 s 29A .… 2.4, 5.41, 5.47, 5.49, 5.50, 8.19, 8.21, 9.142, 9.151, 9.152, 9.156, 9.157 s 29A(A) .… 8.21 s 29A(1) .… 5.50, 8.21, 9.156, s 29A(1A) .… 8.21 s 29A(1)(B) .… 8.21 s 29A(2) .… 5.47, 5.50, 8.21, 9.156, 9.157 s 29A(3) .… 5.49 s 30 .… 5.11, 5.25, 5.43 s 30(1) .… 7.11, 7.29, 7.99, 7.103 s 30(1)(a) .… 7.5 s 30(1)(b) .… 5.12, 5.25 s 30(1A) .… 7.5 s 30(2) .… 7.29 s 30(3) .… 7.30 s 30(4) .… 7.32 s 30(6) .… 7.34 s 31 .… 3.68, 5.14, 8.59, 9.151 s 31(1) .… 8.88 s 31(1)(a) .… 8.59 s 31(1)(b) .… 8.76 s 31(1)(c) .… 8.59, 8.65 s 31(1)(d) .… 8.59, 8.77

s 31(1)(e) .… 8.59, 8.73 s 31(1)(i)–(v) .… 8.88 s 31(2) .… 5.25, 8.86, 8.88 s 31(3) .… 2.24, 5.41, 8.86, 9.157 s 32 .… 5.45, 9.125 s 32(1) .… 8.105 s 32(2) .… 8.105 s 33 .… 1.145, 3.68, 6.38, 6.40, 8.134, 9.125, 9.132, 9.157, 9.163 s 33(1) .… 3.68, 6.8, 6.10, 6.14 s 33(2) .… 6.32, 6.61 s 33(2A) .… 3.133 s 33(3) .… 3.133, 9.143 s 33(4) .… 3.139, 6.35 s 33(5) .… 3.139 s 33(6) .… 3.68, 6.37 s 33(7) .… 6.40, 8.134 s 33(8) .… 6.40 s 33(9) .… 6.14 s 34 .… 3.132, 6.61, 9.132, 9.143, 9.163 s 34(1) .… 5.43, 6.51, 7.102 s 34(1)(b) .… 6.56 s 34(3)(a) .… 3.132 s 34(3)(b) .… 3.132 s 34(4) .… 6.51, 7.45 s 34(4)(b) .… 7.52

s 34(4)(c) .… 7.55 s 35 .… 7.75, 7.99, 743 s 35(1) .… 7.75, 7.95, 7.99, 7.102 s 35(1)(a) .… 5.25, 7.9, 7.75, 7.99, 7.103 s 35(1)(b) .… 5.25, 7.75, 7.94, 7.100, 7.101 s 35(2) .… 7.75, 7.102 s 36(a) .… 5.25 s 36(b) .… 5.25, 7.68 s 36(1)(a) .… 8.116, 8.117 s 36(1)(b) .… 7.68 s 36(2) .… 7.105, 8.117 s 36(2)(a) .… 7.105, 8.117 s 36(2)(b) .… 7.105 s 37(1) .… 5.25, 8.124 s 37(1)(a) .… 5.16 s 37(1)(b) .… 5.16 s 37(2) .… 5.25 s 38 .… 1.108, 5.45, 8.99, 9.125 s 38A .… 8.129, 8.130 s 38A(1) .… 8.129 s 38A(2) .… 8.129 s 39 .… 3.157, 3.181 s 40(a) .… 3.174 s 40(b) .… 3.174 s 40(c) .… 3.174

s 41 .… 3.187 s 43 .… 3.181 s 44 .… 3.176 s 45 .… 3.182 s 46 .… 3.195 s 46(d) .… 3.195 s 46(e) .… 3.195 s 47 .… 3.196 s 48 .… 3.197 s 49 .… 3.192 s 49A(1) .… 9.126 s 49A(2) .… 9.126 s 49A(3) .… 9.126 s 49A(4) .… 9.126 s 49B .… 9.129 s 49C .… 9.129 s 49D .… 9.132 s 49E .… 9.132 s 49G .… 9.130 s 49H .… 9.131 s 49I .… 9.130, 9.133 s 49J .… 9.137 s 49K .… 9.134 s 49L .… 9.144 s 49L(1) .… 9.135

s 49L(2) .… 9.135 s 49MA(2) .… 9.135 s 49MA(3) .… 9.135 s 49MA(7) .… 9.135 s 49N .… 9.134, 9.144 s 49O .… 9.136 s 49P(1) .… 9.137 s 49P(2) .… 9.137 s 49P(3) .… 9.137 s 49P(4) .… 9.137 s 49P(5) .… 9.137 s 49Q(1) .… 9.125 s 49Q(2) .… 9.125 s 49Q(4) .… 9.125 s 49Q(5) .… 9.125 s 49Q(6) .… 9.125 s 50(a) .… 9.142 s 50(b) .… 9.142 s 50(d) .… 9.142 s 50(e) .… 9.142 s 50(g) .… 9.142 s 50(2) .… 9.143 s 50(3) .… 9.143 s 50(3A) .… 9.143 s 50(3B) .… 9.143

s 50(3C) .… 9.142 s 50(3D) .… 9.141 s 50(3G) .… 9.144 s 50(3H) .… 9.144 s 50(4) .… 5.41, 5.44, 5.46, 6.69, 9.150 s 50(5) .… 5.48, 9.148, 9.156 s 50(5A) .… 9.148, 9.156 s 51 .… 3.149, 3.150 s 51(1) .… 9.147 s 51(2) .… 9.147 s 52 .… 9.145 s 53 .… 3.34, 9.146 s 53AA .… 9.156, 9.157 s 53AA(3) .… 9.157 s 53AA(8) .… 9.157 s 55 .… 5.39 s 55(1) .… 9.155 s 55(2) .… 9.155 s 56(3) .… 9.151 s 56(5) .… 9.151 s 59 .… 9.148 s 59(c) .… 9.142 s 59(f) .… 9.142 s 61 .… 9.159 s 61(2) .… 9.164

s 61(4) .… 9.164 s 61A .… 3.87 s 61A(1) .… 9.163 s 61A(3) .… 9.164 s 61B .… 9.165 s 61B(3) .… 9.165 s 61C .… 9.165 s 61D .… 9.166 s 61E .… 9.166 s 61F .… 9.166 s 61G .… 9.167 s 61H .… 9.168 s 61I .… 9.168 s 61I(2) .… 9.169 s 61I(4) .… 9.169 s 61J .… 9.170 s 61J(8) .… 9.170 s 61L .… 9.171 s 61L(4) .… 9.171 s 61L(5) .… 9.172 s 61L(6) .… 9.172 s 61L(7) .… 9.172 s 61M .… 9.173 s 61N .… 9.173 s 62 .… 5.2

s 62(1) .… 3.149 s 62(2) .… 3.149 s 63 .… 3.150, 5.2 s 64(1) .… 11.46 s 64(2) .… 11.46 s 64(3) .… 11.46 s 64(4) .… 11.46 s 64(5) .… 11.46 s 64A(1) .… 11.47 s 64A(2) .… 11.47 s 64A(3) .… 11.47 s 64B .… 11.46 s 65AB .… 11.47 s 67 .… 3.84 s 67(1) .… 2.48 s 67(2) .… 2.48 s 67(4) .… 2.48 Sch 1 .… 4.84 Freedom of Information (Amendment) Act 1993 .… 1.14 Freedom of Information (Amendment) Act 1999 .… 1.14 Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 .… 1.14, 9.124 Freedom of Information (Miscellaneous Amendments) Act 1999 .… 1.14, 6.51 Freedom of Information Regulations 2009 reg 6 .… 2.24

reg 8 .… 9.170 reg 9 .… 9.173 Sch 1 .… 2.23, 9.170 Sch 2 .… 9.136, 9.173 Sch 3 .… 9.170 Guardianship and Administration Act 1986 .… 4.89 Health Records Act 2001 .… 1.14, 1.56, 1.89, 1.91, 1.148, 1.165, 2.52, 2.53, 2.151, 3.69, 3.139, 4.2, 4.7, 6.38, 10.128, 10.163, 722 Pt 5 .… 4.125, 4.130, 4.133 Pt 5, Div 3 .… 8.156 Pt 6, Div 1 .… 10.125 s 3 .… 2.198 s 3(1) .… 1.158, 2.197, 2.199, 4.128 s 5 .… 2.198, 4.126 s 6 .… 1.90 s 7 .… 8.155 s 7(1) .… 1.159 s 7(2) .… 4.129 s 8 .… 10.162 s 10 .… 2.195, 2.196 s 10(1) .… 2.196 s 10(2) .… 2.196 s 11 .… 2.195, 2.197 s 12 .… 2.199, 4.128 s 13 .… 2.195 s 14 .… 2.195

s 15 .… 2.195 s 15(1)(c) .… 1.158 s 16 .… 6.125, 7.119 s 17 .… 2.195 s 18 .… 4.125 s 20 .… 2.193 s 22 .… 6.107, 6.125 s 25 .… 2.193 s 25(2) .… 4.127 s 25(3) .… 4.127, 4.138 s 26 .… 8.156 s 27(1) .… 7.120 s 27(2) .… 7.120 s 28(1) .… 4.136 s 28(4) .… 4.137, 4.138 s 29 .… 4.136 s 29(1)(a) .… 4.134 s 29(1)(d)(i) .… 4.134 s 31 .… 4.132 s 32(1) .… 4.135 s 32(4) .… 4.135 s 32(5) .… 4.135 s 35(a) .… 4.134 s 35(b) .… 4.134 s 37(1) .… 4.139

s 37(2) .… 4.139 s 38 .… 4.139 s 38(1) .… 4.139 s 38(2) .… 4.139 s 39(1) .… 4.139 s 39(2) .… 4.139 s 40 .… 4.139 s 41 .… 4.139 s 42(1)(b)–(c) .… 4.139 s 42(1)(d)–(e) .… 4.139 s 42(1)(f) .… 4.139 s 42(1)(g) .… 4.139 s 42(2) .… 4.139 s 42(3) .… 4.139 s 45 .… 10.125 s 45(3) .… 10.125 s 45(5) .… 10.125 s 45(6) .… 10.125 s 46 .… 10.125 s 47 .… 10.126 s 47(2) .… 10.126 s 47(3) .… 10.126 s 47(4) .… 10.126 s 48 .… 10.127 s 49(1) .… 10.130

s 49(2) .… 10.129 s 49(3) .… 10.129 s 50 .… 10.127 s 51 .… 10.130 s 51(3) .… 10.131 s 51(4) .… 10.131 s 51(5) .… 10.130 s 53(1) .… 10.133 s 53(2) .… 10.133 s 53(3) .… 10.133 s 54(1) .… 10.134 s 54(2) .… 10.152 s 55 .… 10.132 s 56 .… 10.135 s 57 .… 10.135 s 58(4) .… 10.136 s 58(5) .… 10.136 s 59(2) .… 10.137 s 60(1) .… 10.147 s 60(2) .… 10.147 s 60(3) .… 10.147 s 60(4) .… 10.147 s 61 .… 10.138 s 61(5) .… 10.138 s 62 .… 10.139

s 63 .… 10.140 s 64(4) .… 10.142 s 64(5) .… 10.142 s 64(7) .… 10.143 s 64(8) .… 10.143 s 65(1) .… 10.141 s 65(2) .… 10.143 s 66(1) .… 10.144 s 66(2) .… 10.144 s 66(3) .… 10.144 s 66(4) .… 10.144 s 67(1) .… 10.147 s 67(2) .… 10.147 s 67(3) .… 10.147 s 67(4) .… 10.147 s 68 .… 10.148 s 71 .… 10.145 s 72 .… 10.146 s 73(8) .… 10.151 s 74 .… 10.152 s 76(2) .… 10.152 s 77(2) .… 10.153 s 77(3) .… 10.153 s 77(4) .… 10.153 s 77(5) .… 10.153

s 78(1) .… 10.154 s 78(1)(d) .… 10.154 s 78(2) .… 10.154 s 78(3) .… 10.155 s 78(4) .… 10.155 s 79 .… 10.156 s 80 .… 10.156 s 81(1) .… 10.156 s 81(2) .… 10.156 s 82 .… 10.156 s 83 .… 10.156 s 84(a) .… 10.156 s 84(b) .… 10.156 s 84(c) .… 10.156 s 85 .… 4.132 s 85(3) .… 6.106, 6.114 s 85(6) .… 6.106 s 86(1) .… 10.160 s 86(2) .… 10.160 s 86(3) .… 10.160 s 86(4) .… 10.160 s 86(4)(c) .… 10.160 s 86(5) .… 10.160 s 87 .… 11.68 s 88 .… 10.149

s 89 .… 10.150 s 90 .… 10.159 s 92 .… 10.157 s 93 .… 10.156 s 94 .… 10.158 s 95 .… 2.198 s 96 .… 10.147 s 97 .… 10.161 s 99 .… 10.162 Sch 1 .… 1.89, 2.193, 2.195, 2.200, 710 HPP 1 .… 2.201, 710 HPP 2 .… 2.203, 6.105, 6.10, 712 HPP 2.1 .… 6.105 HPP 2.1(i) .… 6.110 HPP 2.2(a) .… 6.105 HPP 2.2(b) .… 6.105 HPP 2.2(c) .… 6.105 HPP 2.2(d)(iii) .… 6.106 HPP 2.2(f) .… 6.107 HPP 2.2(h) .… 6.109 HPP 2.2(j) .… 6.112 HPP 2.2(k) .… 6.113 HPP 2.2(l) .… 6.105 HPP 2.3 .… 6.111, 6.112 HPP 2.4 .… 6.114

HPP 2.4(e) .… 6.114 HPP 3 .… 2.206, 713 HPP 4 .… 2.207, 713 HPP 4.2 .… 1.161, 4.140 HPP 4.3 .… 4.140 HPP 4.5 .… 1.159 HPP 5 .… 2.208, 714 HPP 5.1 .… 11.65 HPP 5.2 .… 11.65 HPP 6 .… 2.209, 4.125, 4.126, 6.125, 7.119, 8.156, 714 HPP 6.1 .… 4.130, 4.137, 4.140, 6.125, 7.119 HPP 6.1(a) .… 8.156 HPP 6.1(a)–(j) .… 4.133 HPP 6.1(b) .… 6.125 HPP 6.1(c) .… 8.156 HPP 6.1(d) .… 7.119 HPP 6.1(f)–(j) .… 8.156 HPP 6.1(k) .… 4.133 HPP 6.1(l) .… 4.133 HPP 6.2 .… 4.137 HPP 6.3 .… 4.137 HPP 6.6 .… 4.142 HPP 6.7 .… 4.143 HPP 6.8 .… 4.141 HPP 6.9 .… 4.141

HPP 7 .… 2.204, 715 HPP 8 .… 2.205, 2.210, 715 HPP 9 .… 6.115, 715 HPP 9.1(a) .… 6.115 HPP 9.1(b) .… 6.115 HPP 9.1(c) .… 6.115 HPP 9.1(d) .… 6.115 HPP 9.1(e) .… 6.115 HPP 9.1(f) .… 6.115 HPP 9.1(g) .… 6.115 HPP 10 .… 2.211, 716 HPP 11 .… 2.212, 716 HPP 14(a) .… 6.97 Health Records Regulations 2012 Sch 1 .… 4.135 Sch 2 .… 4.135 reg 7 .… 4.139 Health Services Act 1988 .… 2.196 Health Services (Conciliation and Review) Act 1987 s 11 .… 11.66 Interpretation of Legislation Act 1984 s 38 .… 2.35 Local Government Act 1958 .… 11.17 Local Government Act 1989 s 3(1) .… 2.23, 8.129

s 89 .… 1.24, 8.130 s 89(2) .… 8.129 s 89(3) .… 8.129 Medical Treatment Act 1988 .… 4.89 Monetary Units Act 2004 .… 3.29, 3.113, 10.117 Ombudsman Act 1973 .… 1.13, 10.179 Open Courts Act 2013 s 17 .… 9.151, 9.154 Privacy and Data Protection Act 2014 .… 1.56, 1.73, 1.81, 1.82, 1.89, 1.92, 1.93, 1.95, 1.110, 1.147, 1.160, 1.165, 2.51, 2.53, 2.148, 2.149, 2.164, 2.201, 2.205, 3.168, 4.2, 4.101, 6.14, 6.20, 10.98, 10.124, 10.163, 743 Pt 3 Div 3 .… 1.83 Pt 3 Div 5 .… 10.103 Pt 3 Div 8 .… 10.99 s 1 .… 1.84, 2.148 s 3 .… 1.158, 2.151, 4.85, 4.86 s 4(1) .… 2.152, 4.85 s 5 .… 1.84 s 5(3) .… 6.124 s 6 .… 6.124 s 6(1) .… 1.159 s 6(2) .… 4.84 s 6AA .… 6.124 s 7 .… 10.123 s 10 .… 2.149

s 12 .… 2.153, 7.118, 8.151 s 12(1)(c) .… 1.158 s 13 .… 2.149, 8.154 s 13(1)(j) .… 4.86 s 13(3)(b) .… 2.149 s 14 .… 6.124, 7.118 s 14(1) .… 4.84 s 15 .… 2.149 s 17(2) .… 4.86, 4.87 s 17(3) .… 4.87 s 17(4) .… 4.87 s 19 .… 4.85 s 20(1) .… 4.83 s 20(2) .… 1.88 s 21(1) .… 1.83 s 21(2)(a) .… 1.83 s 25 .… 11.66, 11.67 s 28 .… 4.89 s 28(2) .… 4.89 s 28(2)(a) .… 4.88 s 28(3) .… 4.89 s 28(4) .… 4.89 s 28(5) .… 4.89 s 28(6) .… 4.89 s 57(1) .… 10.99

s 57(2) .… 1.85, 10.99 s 57(3) .… 10.99 s 57(4) .… 10.99 s 58 .… 10.99 s 59(1) .… 10.100 s 59(2) .… 10.100 s 60 .… 10.100 s 60(1)(b) .… 10.100 s 61 .… 10.99 s 62(1) .… 10.102 s 62(1)(a) .… 10.103 s 62(1)(b) .… 10.103 s 62(1)(c) .… 10.103 s 62(1)(d) .… 10.103 s 62(1)(e) .… 10.103 s 62(1)(f) .… 10.103 s 62(1)(g) .… 10.103 s 62(1)(h) .… 10.103 s 62(1)(i) .… 10.103 s 62(4) .… 10.103 s 62(6) .… 10.105 s 62(7) .… 10.105 s 62(8) .… 10.105 s 63 .… 10.101 s 64(1) .… 10.105

s 64(2) .… 10.105 s 64(3) .… 10.105 s 65 .… 10.106 s 65(1) .… 10.109 s 65(2) .… 10.109 s 66(1) .… 10.104 s 66(2) .… 10.104 s 66(3) .… 10.104 s 66(4) .… 10.104 s 66(5) .… 10.105 s 66(6) .… 10.105 s 66(7) .… 10.105 s 67(1) .… 10.106 s 67(3) .… 10.111 s 68(1) .… 10.111 s 68(2) .… 10.111 s 68(3) .… 10.111 s 68(4) .… 10.111 s 69 .… 10.107 s 70 .… 10.110 s 71(1) .… 10.108 s 71(2) .… 10.108 s 71(3) .… 10.108 s 71(4) .… 10.108 s 71(7) .… 10.108

s 72 .… 10.115 s 74(2) .… 10.108 s 75 .… 10.109 s 76(1) .… 10.116 s 76(2) .… 10.116 s 76(3) .… 10.116 s 76(4) .… 10.116 s 76(5) .… 10.116 s 77 .… 10.115 s 78(1) .… 10.112 s 79(1) .… 10.112 s 79(3) .… 10.112 s 80 .… 10.113 s 81(1) .… 10.113 s 82 .… 10.112 s 83 .… 10.112 s 103 .… 11.68 s 103 (e)(i)(B) .… 1.86 s 103(e)(ii) .… 1.86 s 111 .… 11.66 s 111(3) .… 10.114 s 117 .… 10.121 s 117(3) .… 10.121 s 117(3)(b) .… 4.97 s 117(4)(a) .… 4.97

s 117(4)(b) .… 4.97 s 117(4)(c) .… 4.97 s 117(5) .… 10.122 s 118 .… 10.118 s 120 .… 10.119 s 122 .… 10.117 s 123 .… 10.117 s 124 .… 10.120 s 125(2) .… 4.96 IPP 1 .… 2.155, 704 IPP 2 .… 2.157, 6.102, 6.103, 704 IPP 2.1 .… 1.160 IPP 3 .… 2.160, 705 IPP 4 .… 2.160, 705 IPP 4.2 .… 1.159, 1.160 IPP 5 .… 2.161, 705 IPP 5.1 .… 11.64 IPP 5.2 .… 11.64 IPP 6 .… 2.162, 4.83–4.85, 4.97, 4.99, 8.152, 8.154, 705 IPP 6.1 .… 6.124, 7.118, 8.151 IPP 6.1(a)–(j) .… 4.92, 4.93 IPP 6.1(d) .… 8.153 IPP 6.1(e) .… 7.118 IPP 6.1(f) .… 8.153 IPP 6.1(g) .… 8.153

IPP 6.1(h) .… 8.154 IPP 6.1(i) .… 8.154 IPP 6.1(j) .… 8.154 IPP 6.2 .… 7.118 IPP 6.3 .… 4.90–4.92 IPP 6.4(b) .… 4.94 IPP 6.5 .… 4.98 IPP 6.7 .… 4.102 IPP 6.8 .… 4.94 IPP 6.8(b) .… 4.102 IPP 7 .… 2.158, 705 IPP 8 .… 2.159, 2.163, 705 IPP 9 .… 6.102, 6.104, 705 IPP 10 .… 2.156, 706 Sch 1 .… 1.83, 2.53, 2.151, 2.154, 4.83, 8.151, 704 Sch 1 cl 6.1(a) .… 6.124 Sch 1 cl 6.1(b) .… 6.124 Sch 1 cl 6.1(c) .… 6.124 Sch 1 cl 6.1(e) .… 6.124 Sch 1 cl 6.2 .… 6.124 Protected Disclosure Act 2012 .… 1.37 Public Administration Act 2004 s 16(1) .… 2.23 Public Records Act 1973 .… 1.138, 1.143, 1.153, 1.158, 1.165, 2.50, 2.233, 2.236, 4.2, 4.181, 6.105, 10.180, 11.18 s 2(1) .… 2.232

s 2(1)(c) .… 2.232 s 2(1)(d) .… 2.232 s 2(1)(e) .… 2.232 s 2(2) .… 2.232 s 2(3) .… 2.232 s 8 .… 11.71 s 8A .… 2.235, 4.186 s 9 .… 4.188, 5.56, 6.133, 10.179 s 10 .… 4.188, 5.56, 6.133, 7.131, 8.168, 10.179 s 10A .… 4.185 s 12 .… 1.159, 1.160, 2.234, 12.41 s 13 .… 2.234, 12.41 s 15 .… 2.235 s 15A .… 2.235 s 19 .… 1.160, 2.234 s 20A .… 4.189 s 20A(1) .… 4.189 s 20A(2) .… 4.189 State Owned Enterprises Act 1992 s 90 .… 2.24 Summary Offences Act 1966 s 41A .… 1.126 s 41B .… 1.126 s 41C .… 1.126 Surveillance Devices Act 1999 .… 1.137

s 3(1) .… 1.134 s 6 .… 1.134 s 7 .… 1.134 s 8 .… 1.134 s 9 .… 1.134 s 9B .… 1.134 s 11 .… 1.134 s 11(2) .… 1.134 s 12 .… 1.134 s 12(2) .… 1.134 s 43(1) .… 1.134 Terrorism (Community Protection) Act 2003 .… 1.14 s 33 .… 8.21 Treasury Corporation of Victoria Act 1992 s 40 .… 2.24 Victorian Civil and Administrative Tribunal Act 1998 .… 1.13 s 45(1) .… 1.34 s 49 .… 9.149 s 51 .… 3.87 s 51(2) .… 9.151, 10.153 s 98(1) .… 9.159 s 109(1) .… 9.158 s 109(3)(a)–(e) .… 9.158 s 110 .… 9.158 s 111 .… 9.158

s 123 .… 10.115, 10.151 s 148(1) .… 9.160 s 148(2) .… 9.160 s 148(5) .… 9.160 Sch 1, cl 29C .… 9.152 Sch 1, cl 29D .… 9.152 Sch 1, cl 29D(1) .… 9.153 Whistleblowers Protection Act 2001 .… 1.13 Western Australia Bank of Western Australia Act 1995 s 22 .… 744 Freedom of Information Act 1992 .… 8.132 s 3 .… 743 s 4 .… 744 s 10 .… 744 s 13 .… 744 s 16 .… 744 s 32–34 .… 744 s 36 .… 744 s 39 .… 745 s 45 .… 745 s 50 .… 745 s 54 .… 745 s 77 .… 745 s 85 .… 745

ss 94–97 .… 744 Sch 1 .… 744 Sch 1, cl 1 .… 744 Sch 1, cl 2 .… 744 Sch 1, cl 3 .… 744 Sch 1, cl 4 .… 744 Sch 1, cl 4A .… 744 Sch 1, cl 5 .… 744 Sch 1, cl 6 .… 744 Sch 1, cl 7 .… 745 Sch 1, cl 8 .… 745 Sch 1, cl 9 .… 745 Sch 1, cl 10 .… 745 Sch 1, cl 11 .… 745 Sch 1, cl 12 .… 745 Sch 1, cl 13 .… 745 Sch 1, cl 14 .… 745 Sch 1, cl 15 .… 745 Sch 2 .… 743 Freedom of Information Regulations 1993 .… 743 Spent Convictions Act 1988 .… 746 State Records Act 2000 s 38 .… 747 s 43 .… 747 s 45(3) .… 747

s 46 .… 747 s 47 .… 747 s 48 .… 747 s 49 .… 747 s 61 .… 746 Surveillance Devices Act 1998 .… 746 Telecommunications (Interception and Access) Act 2006 .… 746 Overseas Statutes and Regulations Canada Access to Information Act 1985 s 16 .… 8.59 s 21 .… 7.35 s 69 .… 8.40 Ireland Data Protection Act 2003 s 1(5) .… 12.28 Freedom of Information Act 2014 s 11(9) .… 2.29 s 20 .… 7.35 s 26(3) .… 6.69 s 28 .… 8.40 s 32 .… 8.59 s 32(3) .… 8.90

New Zealand Human Rights Act 1990 .… 1.102 Official Information Act 1982 .… 2.28, 2.36, 5.36 s 2 .… 2.29 s 2(5) .… 2.29 s 5 .… 2.11 s 6(c) .… 8.59 s 9(1) .… 6.69 s 9(2)(f) .… 7.35, 8.40 s 9(2)(g) .… 7.35, 8.40 United Kingdom Human Rights Act 1998 .… 1.100, 1.102 United states 5 USC (2000) s 552 .… 1.4 s 552(a)(6)(E)(v)(II) .… 3.38 s 552(b) .… 1.24 Constitution .… 1.102 Copyright Act 1976 .… 1.43 Freedom of Information Act 1966 .… 1.4, 1.8, 2.9, 3.38, 3.120, 6.47 Exemption 5 .… 7.32, 7.35 Exemption 5(b) .… 8.53 Exemption 7 .… 8.59 Exemption 7(B) .… 8.76 Sunshine Act 1976 .… 1.24

International International Covenant on Civil and Political Rights 1966 (ICCPR) . … 1.110 Article 17 .… 1.44, 1.102, 1.109 Universal Declaration of Human Rights Article 12 .… 1.44

Table of Contents Preface Table of Cases Table of Statutes Chapter 1 Overview, Interrelationships and Contexts Introduction Transparency laws Freedom of information laws Background Commonwealth NSW Victoria Rationales for transparency Other laws that affect the transparency of government information Laws that enhance transparency Laws requiring reasons for decisions Whistleblower protection laws Laws requiring the proactive disclosure of information Laws that may impact negatively on transparency Privacy laws The concept of privacy Information privacy laws Background Commonwealth NSW Victoria Commentary Common law Other statutory protection

Statutory secrecy provisions Human rights laws Data-matching restrictions Electronic health records Spent convictions regimes Telecommunications laws Laws regulating unsolicited marketing activities Other criminal laws that protect aspects of privacy Surveillance device laws Public records laws The interrelationship between FOI, information privacy and public records laws FOI and information privacy FOI and public records Commonwealth NSW Victoria Information privacy and public records Commonwealth NSW Victoria Commentary Broader contexts Modern public management practices Technological developments The post-September 11 national security environment Chapter 2 Key Elements of the Legislation Introduction FOI laws Interpretation Objectives and interpretation clauses Drafting of exemption provisions Scope

Persons and bodies covered Types of documents covered Categories of documents excluded from access Information privacy laws Overview Privacy Act 1988 (Cth) Objectives Scope Application to health information Obligations to comply with the APPs Obligations to comply with requirements relating to tax file number information Obligations to comply with credit reporting requirements The credit reporting requirements Credit providers Privacy and Personal Information Protection Act 1998 (NSW) Interpretation Scope Obligations to comply with IPPs Commentary Privacy and Data Protection Act 2014 (Vic) Interpretation Scope Obligations to comply with IPPs Commentary Health Records and Information Privacy Act 2002 (NSW) Interpretation Scope The Health Privacy Principles Health Records Act 2001 (Vic) Interpretation Scope The Health Privacy Principles Commentary Public records laws

Archives Act 1983 (Cth) State Records Act 1998 (NSW) Public Records Act 1973 (Vic) Commentary Chapter 3 Access and Amendment under FOI Laws Introduction Access Informal access The parameters of the access rights Universal and unconditional access The requirement of possession Making an application Requirements for a valid application Personnel documents Responding to an application Persons authorised to make decisions concerning access Time limits for responses Transfer of applications to other persons or bodies Requirements to provide assistance to persons making applications for access Possible decisions in response to applications for access Access to a document in accordance with a request Access to a copy with deletions Deferral of access Refusal of access Refusal to confirm or deny the existence of documents Forms of access Requirements concerning responses to applications Commonwealth NSW Victoria Grounds on which access can be refused Documents that cannot be found Refusal of access on workload grounds

Charges for access Commonwealth NSW Victoria Commentary Procedures for consulting with third parties Commonwealth NSW Victoria Commentary Other Requirements concerning personal documents prejudicial to an applicant’s health or well-being Protections against liability FOI amendment rights Parameters of amendment rights Preconditions for requesting amendment Personal information/personal affairs Commentary The grounds for amendment Incomplete Incorrect Out of date Misleading Commentary Making a request for amendment Making an application Responding to a request for amendment Authorised decision-makers Transfers of applications Obligations to respond Obligations to provide assistance Possible responses to applications for amendment Methods by which data may be corrected Alteration

Deletion Annotation Scope of amendment right Commentary Chapter 4

Access and Amendment under Information Privacy and Public Records Laws

Introduction Information privacy laws Introduction Privacy Act 1988 (Cth) The APPs Credit reporting requirements Privacy and Personal Information Protection Act 1998 (NSW) Parameters of the access and amendment rights Access to personal records Procedures for the exercise of access rights Amendment of personal records Privacy and Data Protection Act 2014 (Vic) Parameters of the access and amendment rights Access to personal records Amendment of personal records Health Records and Information Privacy Act 2002 (NSW) Parameters of access and amendment rights Access to personal records in the public sector Access to personal records in the private sector Amendment of personal records Health Records Act 2001 (Vic) Parameters of access and amendment rights Access to private sector records in the public sector Amendment of personal records Commentary Public records laws Introduction Archives Act 1983 (Cth)

Parameters of access Making a request for access Forms of access Grounds for refusal of access Requirements to provide assistance with requests for access Charges for access Responding to requests for access Procedures for consultation with third parties Protection from liability State Records Act 1998 (NSW) Parameters of access Requirements concerning access directions Authorisation of earlier access Making a request for access Forms of access Grounds for refusal of access Charges for access Responding to requests for access Protection from liability Public Records Act 1973 (Vic) Parameters of access Making a request for access Grounds for refusal Protection from liability Commentary Chapter 5 Exemption Provisions: Introductory Issues Introduction FOI laws Drafting characteristics Process vs substance Class claims vs adverse effect Reasonable expectation Adverse effect and other prejudice Absolute vs relative tests

Public interest Commonwealth NSW Victoria Insights from the decisions of review bodies Public interest factors in favour of disclosure Formulations containing a reasonableness criterion Common law tests Disclosure under the Act Onus of proof Powers of external review bodies in relation to exempt documents The public interest override Conclusive certificates Information privacy laws Public records laws Commonwealth NSW Victoria Chapter 6 Exemptions that Protect Third Party Interests Introduction FOI laws Documents affecting personal privacy The personal privacy exemptions The information protected Unreasonableness and public interest considerations The exception for an applicant’s own personal records Provision of indirect access on therapeutic grounds Other grounds for refusing access to personal information Documents relating to the business affairs of third parties Overview Trade secrets Reasonable expectation of damage to commercial value Damage to commercial affairs

The information protected Reasonable expectation of adverse effect Unreasonably affect The exception for an applicant’s own records Commentary Information privacy laws Disclosure limitation principles Commonwealth NSW Victoria Exceptions to rights of access Commonwealth NSW Victoria Public records laws Commonwealth Commentary NSW Victoria Chapter 7

Access Exemption Provisions Protecting the Internal Processes and the Business Affairs of Agencies

Introduction Freedom of information laws Deliberative processes documents The information protected Public interest Exclusions Commentary Documents affecting the business affairs, financial and property interests and operations of agencies Trade secrets and business affairs Financial and property interests Research activities

Tests, examinations and audits Management or assessment of personnel Proper and efficient conduct of operations Negotiations etc Commentary Information received in confidence The exemptions that protect against breach of confidence per se The exemptions that focus on the interest of agencies in receiving confidential information Prejudice to future supply of information Information that would be exempt if generated by an agency Documents of local councils Commentary Information privacy laws Commonwealth NSW Victoria Public records laws Commonwealth NSW Victoria Chapter 8

Access Exemption Provisions Protecting Governmental and Public Interests

Introduction FOI laws Documents relating to national security etc Commonwealth NSW Victoria Commentary Documents affecting Commonwealth, state or interstate relations Damage or prejudice to intergovernmental relations Information received in confidence

Public interest Reverse-FOI Cabinet/Executive Council documents Official records Documents prepared for submission/consideration Documents that would reveal decisions/deliberations Briefing documents Others Copies and drafts Purely factual material or purely statistical, technical or scientific material Commentary Law enforcement documents Prejudice to law enforcement investigations and administration of the law Disclosure of confidential sources Danger to life or physical safety Prejudice to fair trial or impartial adjudication Prejudice to methods for preventing breaches Prejudice to lawful methods for protecting public safety Documents created by intelligence agencies Exceptions Commentary Documents subject to secrecy requirements Commonwealth NSW Victoria Commentary Documents subject to legal professional privilege The primary test Waiver Commentary Documents affecting the economy Documents subject to contempt etc Contempt of court Disclosure contrary to the order of a Royal Commission or other

body Contempt of parliament Documents arising out of the companies and securities legislation Electoral rolls and related documents Commentary Local council documents Provisions that exempt materials of the type otherwise excluded under the other FOI Acts Adoption records Other provisions unique to the NSW Act Qualified exemptions in the table in s 14 Absolute exemptions in Sch 1 Information privacy laws Commonwealth NSW Victoria Public records laws Commonwealth NSW Victoria Chapter 9 Freedom of Information Oversight and Review Introduction Commonwealth Legislative oversight Review of FOI decisions Current position Proposed position Investigations and complaints handling Current position Proposed position NSW Legislative oversight Review of FOI decisions

Overview Internal review Commissioner review Tribunal review Judicial review Vexatious applicants Investigations and complaints handling Victoria Legislative oversight Professional standards Review of FOI decisions Overview Internal review Commissioner review Appeals and judicial review Tribunal review The nature of the review process in respect of documents subject to conclusive certificates Effect of decisions concerning certificates Judicial review Investigations and complaints handling Chapter 10

Review under Information Privacy and Public Records Laws Information privacy laws Introduction Privacy Act 1988 (Cth) Complaints to the Privacy Commissioner Enforcement of determinations Appeals to the AAT Injunctions Payment of costs Protection from legal liability Offences Judicial review

Commentary Privacy and Personal Information Protection Act 1998 (NSW) Complaints to the NSW Privacy Commissioner The Commissioner’s powers Review by the NSW Civil and Administrative Tribunal Offences Protection from liability Effect on legal rights of persons Commentary Health Records and Information Privacy Complaints against public sector bodies Complaints against private sector persons Review by the NSW Civil and Administrative Tribunal Offences Protection from liability Effect on legal rights of persons Commentary Privacy and Data Protection Act 2014 (Vic) Complaints to the Victorian Privacy and Data Protection Commissioner Powers of the VCAT Offences Protection from liability Nature of rights conferred under the Act Commentary Health Records Act 2001 (Vic) Complaints to the Victorian Health Services Commissioner Powers of the VCAT Offences Protection from liability Nature of rights conferred under the Act Commentary Public records laws Archives Act 1983 (Cth) Internal review

Ombudsman review Tribunal review State Records Act 1998 (NSW) Commentary Public Records Act 1973 (Vic) Commentary Chapter 11 Publication Requirements FOI laws Requirements to publish specified information and internal laws Publication regimes Requirements to publish specified categories of information Commonwealth NSW Victoria Requirements to publish internal laws Commonwealth NSW Victoria Disclosure logs Commonwealth NSW Reporting requirements Commonwealth NSW Victoria Commentary Government contracts Commonwealth NSW Victoria Information privacy laws Reporting the outcomes of complaints Openness principles Other publication requirements

More general requirements to educate Public records laws Commonwealth NSW Victoria Other publication requirements Public registers Chapter 12 Overview and Future Directions Introduction The OAIC regime and the rationale for its dismantlement FOI laws Overview Assessment Information privacy laws Health records laws Public records laws Appendix I Appendix II Appendix III Bibliography Index

[page 1]

Chapter 1 Overview, Interrelationships and Contexts INTRODUCTION Information is the lynch-pin of the political process. Knowledge is quite literally power.1 1.1 Information and its control play a critical role in defining the relationship between governments and their citizens. The government sector is a vast depository of information, including information that is vital for a complete understanding of our social, political and natural environment. Australians require information to facilitate the exercise of their rights and responsibilities as citizens.2 Information is important because it equips them to make reasoned choices about the political world and to better mount and evaluate reasoned arguments.3 Those attributes, in turn, promote good government, by discouraging fraud and wasteful or inefficient practices. Access to information is also a necessary precondition for meaningful participation in the political process. At the same time, the government sector is a vast collector of information that sheds light on the personal affairs of individuals. Control by individuals over their own personal information is vital for [page 2] the protection of individual autonomy and offers a measure of

protection against discrimination and totalitarianism. For information to be accessible it must be recorded and preserved in a manner that makes it possible for it to be retrieved. Reliable recordkeeping practices are also important for effective management, including the implementation of effective privacy protection, and ensuring the preservation of important historical records. 1.2 This book examines the complex tapestry of interconnected and overlapping statutory regimes that govern access to, and amendment of, government information, including freedom of information (FOI) laws, privacy laws (including information privacy and health records laws) and public records laws. It also evaluates their efficacy, having regard to the modern context in which they exist, an environment that is characterised by privatisation, deregulation and contracting out and which has been transformed both by rapidly evolving technological developments and a continuing preoccupation with national security. Its main focus is on three specific jurisdictions, the Commonwealth, New South Wales (NSW) and Victoria, although the key features of the regimes in other states and territories are summarised briefly in Appendix II.

TRANSPARENCY LAWS Freedom of information laws 1.3 FOI laws provide the main mechanism for transparency in Australia. The three FOI laws that provide the main focus of this book are the Freedom of Information Act 1982 (Cth) (Commonwealth FOI Act), the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and the Freedom of Information Act 1982 (Vic) (Victorian FOI Act). These are referred to collectively as the FOI Acts.

Background 1.4

The concept of FOI has its origins in Sweden, which first adopted

a system of free access to public documents in 1766.4 However, it did not attract attention in Australia until the United States Congress enacted an FOI Act in 1966.5 The Commonwealth FOI Act formed part [page 3] of a broader package of administrative law reforms and was the first national legislation of its kind to be introduced into a country with a Westminster-style system of government.6 Its enactment was a major step in establishing open government and broke significant ground in seeking to overturn a deeply entrenched tradition of government secrecy.7 1.5 The 1970s and early 1980s in Australia was a period notable for many major changes in the field of administrative law. At common law, resurgence in judicial activism was accompanied by an increased emphasis on the importance of access to government information. A major development was the broadening of the range of decisions in which the courts were willing to imply a duty to accord natural justice.8 That duty was defined as generally requiring disclosure by the decisionmaker of any material to be taken into account in arriving at a decision.9 There was also an increased willingness to imply a duty to give reasons for decisions in cases where there was a statutory right of appeal,10 together with an indication that an adverse inference might be drawn from a failure to give reasons.11 Another important development was a narrowing of the scope of the circumstances in which the executive was entitled to claim evidentiary privilege. In Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 the High Court made it clear that it was for the court, not the executive, to decide whether a government document should be produced or withheld in the course of legal proceedings. It also rejected the validity of claims to withhold broad classes of documents on the basis that their disclosure would inhibit candour and frankness within the executive branch. The test that it instead applied was whether the public interest

in withholding the particular document in issue outweighed the public interest in the administration of justice.12 [page 4] A similar balancing-type approach was taken by the High Court in Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39; 32 ALR 485 in the context of a claim by the Commonwealth for injunctive relief on the grounds of breach of confidence. That case was decided on the basis that the publication of sensitive government information would be restrained only if it was established that disclosure would be inimical to the public interest. In assessing the question of public interest, the court weighed the potential prejudice to governmental interests against the public’s interest in knowing and in expressing its opinion.13 1.6 Even more significant were the changes that resulted from new legislation. During the early 1970s a number of government committees were set up both federally and in some of the Australian states to examine the review of administrative decisions. Their reports, and especially that of the Commonwealth Administrative Review Committee,14 provided the basis for a package of legislative reforms. Their purpose was to provide a set of legislative provisions designed to facilitate effective public administration while at the same time safeguarding the civic rights of the individual citizen.15

Commonwealth 1.7 The Commonwealth’s ‘new administrative law’ package initially consisted of three elements: the Ombudsman Act 1976 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was later expanded to include the Commonwealth FOI Act and, more recently, the Public Interest Disclosure Act 2013 (Cth).

The Ombudsman Act was designed to strengthen parliamentary oversight over government decisions that impact on members of the public. It created a new office of the Commonwealth Ombudsman with extensive powers to investigate complaints relating to matters of administration and to report to the Commonwealth Parliament. The Commonwealth Ombudsman’s office operates as a watchdog with the power to investigate complaints about matters of maladministration and to make recommendations to the responsible government. Its ultimate power lies in its ability to make adverse reports to the Commonwealth Parliament. [page 5] The Administrative Appeals Tribunal Act established a new general administrative tribunal, the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT), with power to review on the merits a wide range of administrative decisions. An important feature of this law from the perspective of transparency is that it provides for a right to request written reasons for decisions that are subject to review by the Commonwealth AAT.16 The Administrative Decisions (Judicial Review) Act provides for an alternative to the procedure for obtaining judicial review from the High Court. It codifies the grounds for review and provides for a simpler and less complex procedure for judicial review of administrative decisions by the Federal Court of Australia. It also provides for a right to request written reasons for decisions that are subject to the exercise of those review powers. 1.8 The Commonwealth FOI Act later formed the fourth element of this package. It had its origins in a 1972 policy commitment by the Whitlam Labor Government to enact legislation along the lines of the United States Freedom of Information Act, but its enactment was delayed until 1982 pending its consideration by a number of government bodies. Those bodies included the Royal Commission on

Australian Government Administration, two separate public service committees17 and the Senate Standing Committee on Constitutional and Legal Affairs. The comprehensive report produced in 1979 by the Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978 (the 1979 Senate Committee Report), after it had held extensive hearings throughout Australia, contained a large number of recommendations, many of which would have extended the scope of the proposed legislation. The version of the Act, which was finally enacted after lengthy debate in two successive sessions of parliament and came into effect on 1 December 1982, failed to give effect to many of these recommendations.18 Several were, however, subsequently incorporated as a result of amendments introduced by the Freedom of Information Amendment Act 1986 (Cth). [page 6] The Act was later comprehensively reviewed by the Senate Standing Committee on Constitutional and Legal Affairs, which published another report in 1987, Report on the Operation and Administration of the Freedom of Information Legislation (the 1987 Senate Committee Report) and in a joint report by the Australian Law Reform Commission (ALRC) and the Administrative Review Council in 1985, titled Open Government: A Review of the Federal Freedom of Information Act 1982 (the Open Government Report).19 It was also partially reviewed in the Hawke Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 (the Hawke Review).20 1.9 The following key amendments were made to the Commonwealth FOI Act over the period 1983 to 2009: • the Freedom of Information Laws Amendment Act 1986 (Cth)

introduced application fees for the processing of FOI applications and imposed additional fees for searching for, retrieving and deciding upon requests; • the Privacy Act 1988 (Cth) introduced an obligation to consult with a third party prior to the disclosure of documents the release of which might involve the unreasonable disclosure of information with respect to that person and provided the third party with a right to seek review of a decision to release a document containing such information; • the Freedom of Information Amendment Act 1991 (Cth) made a number of more substantial changes, including: – replacing the phrase ‘information relating to personal affairs’ in s 41 with the phrase ‘personal information’, to draw the definition in line with that contained in the Privacy Act 1988; – clarifying the operation of provisions that permit a person to seek amendment or correction of records containing personal information in Pt V of the Act; and – clarifying the interpretation of a number of the exemption provisions in the Act and introducing a new exemption provision relating to research information; • the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) repealed the power to issue conclusive certificates, allowing the Commonwealth AAT to undertake full merits review of all claims for exemption; and [page 7] • the Freedom of Information Amendment (Reform) Act 2010 (Cth) made a large number of changes, including: – amending the new objects clause; – introducing a new Information Publication Scheme for agencies subject to the FOI Act;

– –

– – –

introducing a new public interest test for exemptions categorised as conditional exemptions; specifying lists of factors that favour disclosure and factors that should not be taken into account in relation to evaluating questions of public interest; specifying a further list of factors relevant to the conditional privacy exemption; extending the scope of the Act to cover contracted service providers; and providing for a new oversight and external review function to be performed by a new Australian Information Commissioner21 within the Office of the Australian Information Commissioner (OAIC) as established under the Australian Information Commissioner Act 2010 (Cth).

On 13 May 2014 the government announced a Budget decision to disband the OAIC by 1 January 2015 and to transfer its FOI Commissioner review and FOI oversight functions respectively to the Office of the Commonwealth Ombudsman and to the AttorneyGeneral’s Department.22 It subsequently introduced the Freedom of Information Amendment (New Arrangements) Bill 2014 to give effect to these plans. At the date of publication, this Bill had not yet been passed. A notice published in December 2014 announced that the OAIC would remain operational for the time being, but that FOI complaints would be referred to the Ombudsman.23

NSW 1.10 The NSW Parliament created the office of Ombudsman in 24 1974 but was much slower in implementing other administrative law reforms. It enacted the Protected Disclosures Act 1994 (NSW) to protect whistleblowers, but review on the merits by a general administrative [page 8]

tribunal was not available until the creation of the Administrative Decisions Tribunal (ADT) by the Administrative Decisions Tribunal Act 1997 (NSW). The ADT has since been replaced by the NSW Civil and Administrative Review Tribunal (NCAT), which exercises similar administrative review functions under the Administrative Decisions Review Act 1997 (NSW). Proposals for the enactment of FOI legislation in NSW in 197725 and 198226 resulted in the introduction of a private member’s Bill in 1982 and a Bill introduced by the Wran Labor Government in 1983. The Bills were both loosely based on the Commonwealth FOI Act and both lapsed. Subsequently in 1989, the Coalition Government, which was elected on a platform including a commitment to enact FOI legislation, introduced a Bill that was based on the private member’s Bill of 1982. The Bill was amended following community consultation and was enacted as the Freedom of Information Act 1989 (NSW) (the NSW FOI Act). 1.11 The Freedom of Information (Amendment) Act 1992 (NSW), which gave effect to a Charter of Reform between the Greiner Coalition Government and three independent members of the Legislative Assembly, made a number of important amendments, including: • a reduction in the time limits for responding to requests for access; • the insertion of a new section which made it clear that potential embarrassment to, or loss of confidence in, the government (and also the risk that an applicant will misunderstand or misinterpret a document) are not relevant when applying a public interest test under the Act; • the repeal of a section authorising the non-disclosure of documents created more than five years prior to the commencement of the Act; • insertion of a new provision authorising the denial of access on workload grounds; • the conferral on the NSW Ombudsman of new powers to recommend the disclosure of exempt documents on public interest grounds;

• the inclusion of a new prohibition on the imposition of access charges for the time spent in searching for a document that was lost or misplaced; and [page 9] • a reduction in the number of agencies totally exempted from the operation of the Act and limitations on the extent to which other agencies were exempt. The NSW FOI Act was subsequently amended by the Local Government Act 1993 (NSW), to cover all documents in the possession of local authorities; by the Freedom of Information Amendment (Terrorism and Criminal Intelligence) Act 2004 (NSW), to include a new exemption for documents relating to counter-terrrorism measures; and by the Freedom of Information Amendment (Open GovernmentDisclosure of Contracts) Act 2006 (NSW), to require disclosure of information about government contracts. 1.12 More recently, the NSW FOI Act was repealed and replaced by the GIPA Act. The latter came into effect on 1 July 2010 and was introduced with the aims of ‘establishing a framework to actively promote the release of government information’ and ‘shifting the focus towards proactive disclosure’.27 The GIPA is a second generation FOI Act that shares many of the new features of the amended Commonwealth FOI Act.

Victoria 1.13 The Commonwealth administrative law reforms described above were closely mirrored by an equivalent ‘new administrative law’ package in Victoria, which included legislation establishing the office of Victorian Ombudsman28 and a Victorian Administrative Appeals Tribunal (Victorian AAT),29 and an Act to simplify the procedure for judicial review.30 These were later supplemented by the Whistleblowers

Protection Act 2001 (Vic). The Victorian AAT was replaced by the Victorian Civil and Administrative Tribunal (VCAT) in 1998. 1.14 Victoria was the first Australian state to enact FOI legislation. The Victorian FOI Act, which came into operation six months after its Commonwealth counterpart, was based on a 1981 private member’s Bill introduced by the Labor opposition in October 1981. Acts that have made significant amendments to it since its enactment include: • the Freedom of Information (Amendment) Act 1999 (Vic), which incorporated additional restrictions on the disclosure of personal information; [page 10] • the Freedom of Information (Miscellaneous Amendments) Act 1999 (Vic), which repealed changes introduced by the Freedom of Information (Amendment) Act 1999 (Vic) and also narrowed the exemptions for Cabinet documents and business affairs information;31 • the Freedom of Information (Amendment) Act 1993 (Vic), which extended the operation of the Act to municipal councils; • the Health Records Act 2001 (Vic), which amended the Victorian FOI Act to enable it to operate consistently with it; • the Terrorism (Community Protection) Act 2003 (Vic), which inserted a new national security exemption and related provisions; and • the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 (Vic), which established a new office of Freedom of Information Commissioner to provide oversight and a complaints and review mechanism.

Rationales for transparency 1.15

The 1979 Senate Committee Report identified three specific

justifications for the provision of increased access to government information. In general terms, these relate to the accountability of the government to its citizenry, enhanced citizen participation in government affairs and information privacy.32 Accountability 1.16 A key justification for providing statutory rights of access to government documents is that transparency is an essential precondition for political accountability and for discouraging corruption and other forms of wrongdoing. This is especially so at a time when government operations have become more commercialised in their focus and when the government makes increasing use of contracts as a means of administration. 1.17 Our Westminster-style system of government is premised on the assumption that appropriate accountability can be achieved via the [page 11] mechanisms of individual and collective ministerial responsibility. The former requires that ministers in charge of government departments must be members of parliament and answerable for their performance to the parliament.33 The latter provides that members of the Executive Council, which forms the apex of executive government, are collectively responsible for its decisions and requires them to maintain the support of the lower (or people’s) house of parliament if they are to remain in office.34 This system, which varies slightly in its implementation in different jurisdictions,35 is designed to ensure that the government is accountable to the parliament and, through parliament, to the people. In Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 at [42] the High Court commented that: A system of responsible government traditionally has been considered to encompass ‘the means by which Parliament brings the Executive to account’ so that ‘the Executive’s primary responsibility in its prosecution of government is owed to Parliament’.36 The

point was made by Mill, writing in 1861, who spoke of the task of the legislature ‘to watch and control the government: to throw the light of publicity on its acts’.37 It has been said of the contemporary position in Australia that, whilst ‘the primary role of Parliament is to pass laws, it also has important functions to question and criticise government on behalf of the people’ and that ‘to secure accountability of government activity is the very essence of responsible government’.38

Information access by parliamentarians traditionally has been achieved via a range of parliamentary mechanisms, including orders for production of documents.39 However, it is not uncommon for governments to seek to resist disclosure. Most commonly, such resistance arises in the context [page 12] of orders for production of documents by non-government-controlled upper houses or parliamentary committees. This issue received legal scrutiny in the context of the NSW Parliament as a result of litigation commenced by a former leader of the NSW Legislative Council, Michael Egan, in 1996.40 Mr Egan was found guilty of contempt for refusal of orders to produce papers to the council and was suspended from sitting. The litigation followed his forcible removal after the House found him guilty of contempt and suspended him from sitting.41 1.18 FOI laws enhance the accountability of the executive to the elected parliament by providing members of parliament with an additional means of acquiring the knowledge about internal workings of the bureaucracy required to evaluate the activities of the government.42 They also reinforce the role of parliament as a ‘vehicle for the expression of popular grievances with the government’.43 They are complemented by other mechanisms that perform a similar role.44 The latter include the offices of Auditors-General and Ombudsmen,45 both of which play an important role in ensuring that matters of maladministration, financial impropriety and financial inefficiency are brought to the attention of the parliament. Parliamentary committees such as the Senate Finance and Public

Administration Committee and [page 13] the Victorian Public Accounts and Estimates Committee also play an important role in scrutinising the activities of government agencies.46 1.19 A major problem with the theory of responsible government is that its effectiveness in providing accountability has been eroded by the combined effect of increases in the complexity of government, and the consolidation of party solidarity (which ensures that members of parliament generally vote along party lines).47 The principle of individual responsibility presupposes a relatively small administrative system and one structured around ministers and their departments. Even with the recent trend to smaller government, this is clearly not consonant with the reality. As a result, political commentators have increasingly viewed responsible government as ‘part of the mystique of our political system’, rather than as ‘a description of the way our system works’.48 Because of these deficiencies, it has been increasingly supplanted, or at least supplemented, by a theory of representative government that attaches more emphasis to the need for direct accountability to the people. That process has resulted in a shift of emphasis from parliamentary sovereignty to the sovereignty of ‘We the People’.49 To the extent that the executive is in a position to thwart accountability via parliament, what is called for is a more direct accountability that can be assisted by FOI laws. As noted by Snell and Upcher: ‘FOI tempers the dominance of the executive branch and the power of Cabinet, and potentially loosens the iron grip of the party machine by forcing public accountability’.50 [page 14] 1.20

The concept of representative government was mentioned in a

number of the judgments of the High Court in the so-called ‘free speech cases’.51 In Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; 108 ALR 577 the majority of the High Court held that the Commonwealth Constitution provides for representative government. It defined that term as denoting the sovereign power that resides in the people and is exercised on their behalf by their representatives.52 In the leading judgment, Mason CJ emphasised the point that government ministers are not only chosen by the people but also exercise their executive powers as the people’s representatives. It follows therefore that in exercising these powers they are accountable to the people for their actions. Similarly, Deane and Toohey JJ in their joint judgment in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681 commented at 72 that the present constitutional foundation of our system of government was that ‘the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth’. Although neither of these decisions went so far as to suggest that the Commonwealth Constitution mandates access to government information, they arguably provide support for the democratic objectives of FOI legislation.53 In particular, it was recognised that there was inherent in the concept of representative democracy a right to discourse on public affairs. That right is dependent for its quality on access to government information:54 The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation. … Only by the spread of information,

[page 15] opinions and arguments can electors make an effective and responsible choice.55

The objects clause in the Commonwealth FOI Act refers to the objective of promoting ‘Australia’s representative government’ by contributing to ‘increasing public participation in Government processes, with a view to promoting better-informed decision-making’ and ‘ increasing scrutiny, discussion, comment and review of the Government’s activities’.56 1.21 The other key accountability justification for providing statutory rights of access to government documents is that transparency plays an important role in discouraging corruption and other forms of wrongdoing. As observed in the Queensland Fitzgerald Report, public opinion affords protection against public maladministration and this, in turn, requires the public to have adequate knowledge of the relevant facts. Consequently, structures and systems have to be introduced, and to operate efficiently, so as to ensure that the public has access to the information necessary for it to have that knowledge.57 This is especially so at a time when government operations have become more commercialised in their focus and when the government makes increasing use of contracts as a means of administration. Citizen participation 1.22 A second justification for the enactment of FOI legislation derives from concerns about the limited extent of participation by ordinary citizens in the formulation of government policy and in the process of the government itself. FOI legislation does not establish any formal mechanism for public participation. However, the requirements to publish information about the structure and organisation of government agencies and the processes available for consultation provide a useful starting point for promoting increased participation. 1.23 Public participation provides a means for the government to elicit the views of the people to assist it in making informed decisions and [page 16]

also makes any decision-making easier to justify to the public.58 It is also inherently democratic because it gives ordinary citizens an investment in the affairs of their government and provides a means for controlling their own affairs and those of the society in which they live. In addition, it ‘affords a systemic check and balance to any tendency of the small elite group which ultimately manages and controls the processes of high level government policy formulation and decisionmaking, to seek participation and input only from selected individuals or groups who can thereby be accorded a privileged position of influence in government processes’.59 As observed by Feldman, the rationale for democratic governance is that it allows individuals to have a say in the terms and conditions on which binding social rules are developed. He suggests that it is only where individual citizens are accorded such a say that they can reasonably be expected to be willing to subordinate their individual interests to those of the community and to have their rights and obligations set for them by social institutions.60 1.24 In the United States, FOI legislation is supplemented by socalled ‘sunshine’ laws, which provide rights of access to meetings of major decision-making bodies.61 Laws of this type have not as yet found favour with Australian legislators, except to a limited extent in the context of local government.62 Information privacy 1.25 Information privacy requires that individuals should be able to access their personal records and to require their amendment if they are inaccurate or misleading. As noted in the 1979 Senate Committee Report, [page 17] increases in the scope of the services and benefits provided by

government agencies have resulted in a corresponding increase in the number and kinds of personal records held by them. This growth in the volume and complexity of personal records has been accelerated by developments in computer technology that facilitate the accumulation, storage and easy retrieval and cross-referencing of data. The provision of rights to access and amend personal information creates an important means of reducing the intrusiveness of these informationgathering activities, by allowing individuals to check what information is being kept about them and to assure themselves that it is fair and accurate. It may also facilitate their pursuit of redress against government bodies via other mechanisms such as tribunal review or judicial review. These important rights were first available in Australia via FOI legislation, although they now exist in privacy laws in those jurisdictions that have enacted such laws. In some jurisdictions that have enacted both laws, such as Victoria, FOI laws still provide the key mechanism for the exercise of rights of access to, and amendment of, personal records in the possession of public sector bodies. However, in other jurisdictions, such as NSW, the amendment function is available only in the privacy law. The interrelationship between FOI and privacy laws is considered in more detail later in this chapter. The value of government information as a national resource 1.26 A further factor identified in the Open Government Report is that the information holdings of the government are a national resource that should be accessible to the Australian people on whose behalf the information is generated and collected.63 As was pointed out by the Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at [37], such information is ultimately acquired and generated for ‘purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of impost or another) fund the institutions of government and the salaries of officials’.

This objective is reflected in the objects clause of the Commonwealth FOI Act, which refers to the intention of the Commonwealth Parliament ‘to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource’.64 [page 18] 1.27 A related objective, which is common to government access laws, is that of stimulating the information market by making available information for exploitation in a private sector-led market in information. As observed by Mendel, providing access to this information facilitates more effective business practices, by promoting ‘a fluid information flow between government and the public sector, maximizing the potential for synergies’.65 Transparency as a human right 1.28 There has been growing support for the recognition of FOI as a human right, by both academics66 and human rights tribunals.67 The nub of this right, which bears close similarity to a familiar justification for privacy, is that without a right of access to government information individuals are little more than subjects and are denied the right to make integrity and individual responsibility a reality.68

Other laws that affect the transparency of government information 1.29 FOI laws form a vital part of a broader network of laws, both formal and informal, that affect the overall transparency of the executive branch of government, including information privacy laws and public records laws, as discussed elsewhere in this chapter.

Laws that enhance transparency 1.30

Other laws that enhance transparency include laws requiring

administrative decision-makers to provide reasons for their decisions,69 whistleblower protection laws and laws requiring the proactive disclosure [page 19] of information, including information about government contracts. These laws are in turn supplemented by other mechanisms that enhance parliamentary accountability, including the offices of Auditor-General and Ombudsman and parliamentary committees.

Laws requiring reasons for decisions 1.31 The requirement for administrators to provide reasons for their decisions is an important aspect of transparency. It not only enhances the operation of any appeal or review rights but also satisfies the fundamental requirement of fair play (that parties should know at the end of the day why a particular decision has been taken) and encourages public confidence in the administrative process. 1.32 There is no general common law duty for decision-makers to provide reasons,70 although they may be required to do so in exceptional circumstances.71 However, there are a number of Commonwealth and Victorian laws that require administrative decision-makers to provide written reasons, on request. 1.33 The two key Commonwealth laws are the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). Both Acts require decision-makers, on request, to provide written reasons for their decisions, including their findings on material questions of fact and the evidence or other material on which those findings were based.72 In addition, the Acts Interpretation Act 1901 (Cth) s 25D amplifies specific requirements to provide reasons contained in other Commonwealth legislation. 1.34

There are similar requirements in the Administrative Decisions

Review Act 1997 (NSW)73 and the Victorian Civil and Administrative Tribunal Act 1998 (Vic)74 and more limited duty to give reasons in the Administrative Law Act 1978 (Vic).75 1.35 Individual statutes may also impose requirements for decisionmakers to provide reasons, either explicitly or by implication. The way [page 20] in which these duties should be interpreted was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; [2013] HCA 43 in relation to the exercise of a statutory obligation to provide written reasons that was imposed on a medical panel under Victorian accident compensation legislation. The court identified two considerations as being of key significance: the nature of the function that gave rise to the need to provide the written reasons; and the objectives of the specific legislation in requiring a written statement of reason. It concluded that what was required of the medical panel was to set its path of reasoning76 to a sufficient standard to enable a court to see whether or not the decision involved any error of law.77

Whistleblower protection laws 1.36 Whistleblowing involves the disclosure of information about ‘illegal, immoral or illegitimate practices … to persons or organisations that may be able to effect action’,78 and is increasingly recognised as having an important role to play in detecting and recognising wrongdoing by, and within, organisations, including public sector bodies. 1.37 The unauthorised disclosure of information by public sector employees may result in liability for breach of confidence, criminal sanctions under secrecy laws and internal disciplinary measures. However, all Australian jurisdictions now have laws that offer some level of protection for whistleblowing by public sector employees. These

include the Public Interest Disclosure Act 2013 (Cth),79 the Protected Disclosures Act 1994 (NSW) and the Protected Disclosure Act 2012 (Vic).80 [page 21]

Laws requiring the proactive disclosure of information 1.38 The publication of information about government procurement, including information about major contracts, has an important role to play in ensuring financial accountability and discouraging corrupt practices. This is an important issue given the extent to which government services are contracted out and the large sums of money expended on government contracts, especially for major projects. However, disclosure of information is commonly resisted on the grounds of commercial confidentiality.81 1.39 A number of jurisdictions require the proactive disclosure of specified information relating to government contracts. In the case of the Commonwealth, these requirements are contained in the 2012 Commonwealth Procurement Rules, which require the publication of specified information about tenders and contracts on the AusTender website.82 There is a requirement to publish details of agency agreements, Commonwealth contracts and standing offers with an estimated liability of $10,000 and to report a list of contracts valued at $100,000 or more (and also to identify confidentiality requirements). The requirement to publish information is subject to the exemptions in the Commonwealth FOI Act. In NSW these requirements are contained within Div 5 of the GIPA Act. They include a requirement for agencies to maintain a register of government contracts valued at $150,000 or more.83 The equivalent requirements in Victoria are contained in a government policy statement that requires disclosure of contracts worth more than $100,000.84

Laws that may impact negatively on transparency 1.40 Laws that may operate to detract from transparency include the common law right of action for breach of confidence and official secrecy laws, as discussed below. [page 22] 1.41 The transparency of government information in the context of litigation may also be affected by claims of public interest immunity and legal professional privilege. Public interest immunity is an evidentiary rule that restricts the production of evidence in legal proceedings on the basis that its disclosure would be against the public interest.85 This is generally now accepted as being confined in its application to the protection of ‘established categories as they apply to the proper functioning of government’.86 It generally provides a high level of protection in respect of Cabinet documents.87 Legal professional privilege applies to confidential communications between a client and the client’s legal adviser (including an in-house government lawyer) for the dominant purpose of giving or receiving legal advice or for use in existing or anticipated litigation.88 It is further discussed in the context of exemptions for material subject to legal professional privilege in Chapter 8. 1.42 The transparency of government information may also be affected by the exercise of copyright by government agencies. This is an important issue because of the revenue Australian governments generate via their exercise of copyright, and the fact that ‘price is a barrier to consumption and as such an inhibitor on the goal of increased access to government materials’.89 1.43

The Copyright Act 1968 (Cth) confers on the Crown ownership

of works, recordings and films ‘made by or under the direction or control’ of the Commonwealth or a state and of works ‘first published in Australia if first published by, or under the direction or control of’ the Commonwealth or a state. These provisions were reviewed in 2005 by the Copyright Law Review Committee, which recommended their abolition.90 It also recommended that copyright no longer subsist in a number of primary legal materials, including statutes and judgments.91 [page 23] The government’s failure to implement these recommendations is unfortunate given that the traditional rationales for copyright protection are less applicable to public sector agencies. It arguably creates an unnecessary impediment to transparency which is inconsistent with the Gov 2.0 policy discussed further below, and is at odds with the principle that information generated by governments at the taxpayers’ expense should be treated as a national resource. It should be noted that the United States Copyright Act 1976 treats most works created by federal government agencies as being in the public domain.92

PRIVACY LAWS The concept of privacy 1.44 Although privacy is notoriously difficult to define, it has long been accepted as a human right that plays an important role in the relationship between citizens and their governments. In 1948 the United Nations adopted the Universal Declaration of Human Rights. Article 12 provides that: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

In a similar vein, Art 17 of the International Covenant on Civil and

Political Rights 1966 (ICCPR), which was ratified by Australia in November 1980, requires that: (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation. (2) Everyone has the right to protection of the law against such interference or attacks.

The Human Rights Committee has interpreted Art 17 as requiring, among other things, the implementation of basic data protection principles, including the right to ascertain what personal information is stored in ‘automatic’ data files, and for what purposes.93 1.45 There are several important reasons why privacy warrants the status of a human right. Arguably, the most significant is that it operates against an abuse of power in an era where information is integral to the [page 24] effective exercise of power. It also plays a pivotal role in facilitating free participation in public affairs and the free exercise of other recognised rights such as freedom of speech and freedom of association.94 1.46 The term ‘privacy’ stems from a Latin root, ‘privare’, which means ‘to separate’. To want privacy is to want to have the ability to maintain separation — to be individual. Privacy has many different dimensions such as privacy of the person (including spatial, physical and bodily/DNA privacy), privacy of personal behaviour, communications privacy and information privacy. These dimensions, although conceptually distinct, are closely interrelated and increasingly converging due to technological advances that facilitate the collection and processing of vast quantities of personal information, including information about individuals’ movements, biometrics, activities and communications. These technological developments and the associated surveillance activities that they have facilitated have made the regulation

of information privacy increasingly important. 1.47 To understand the social significance of information privacy it is important to consider its function in protecting individuals from unwanted public scrutiny and its interrelationship with notions of human dignity and personal autonomy. Information privacy is not concerned with secrecy per se, but rather with the ability to control information about oneself and to maintain a zone that is free from scrutiny by others.95 That ability enhances freedom by allowing individuals to protect themselves against the harmful effects that may result from public knowledge about personal behaviours and beliefs, and therefore protects also against the inhibition of self-expression that would result in its absence.96 Privacy is also important because there are aspects of our inner lives and intimate relationships, such as the expression of strong emotions, which cannot exist if exposed to the public gaze.97 As noted by Lustgarten and Leigh, individuals who lack control over their own personal information are seriously diminished as persons both in their own eyes and in the eyes of those who are capable of intruding upon them.98 [page 25] 1.48 Privacy concerns may extend to aggregations of non-sensitive information, because the process of aggregation serves to reveal information (for example, information about personal tastes) that is itself sensitive. This makes individual control over personal data especially important. As noted by Rosen: ‘Privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can be easily confused with knowledge’.99 Aggregations of data constitute a problem, in part because they facilitate abstract decision-making based on statistical analysis, rather than judgment based on human knowledge. This is problematic to the extent that the aggregations ‘fail to capture the fine grain of our lives’,

resulting in decisions that are potentially unfair or incorrect. They are also problematic to the extent that they do provide an accurate picture, in that they then potentially expose individuals to coercion, control and abuse by shifting the locus of power away from individuals and on to those who hold aggregations of data about them. 1.49 Information privacy concerns also now arise in relation to activities conducted in public places, due to the systematic observation, collection and processing of personal information that has been made possible by modern surveillance technologies. These new surveillance activities raise qualitatively different privacy issues from casual observations by random passers-by. As described by Nissenbaum, what is in issue is loss of contextual integrity; that is, a departure from the presiding norms that previously offered a substantial protection for privacy in public places.100 1.50 The pervasive nature of surveillance practices that continue to evolve in response to technological advances have led to an effect captured by Haggerty and Ericson’s concept of the ‘surveillant assemblage’.101 The assemblage arises due to the converging interests of multiple public and private bodies in establishing individuals’ credentials and surveillance systems to provide for ways to differentiate among unknown strangers. This system is designed to improve the efficiency of decision-making, but [page 26] is problematic to the extent that ‘[l]ack of public anonymity promotes conformity and an oppressive society’102 and encourages blandness and conformity, leading to ‘a blunting and blurring of rough edges and sharp lines’.103 1.51

The negative effect of constant surveillance is commonly

explained using the metaphor of the panopticon, a prison in which inmates were subjected to ongoing surveillance from a central tower from which they could be observed at any time by guards who were themselves hidden from sight. The panopticon was designed to alter the behaviour of prisoners, by subjecting them to a form of internalised surveillance that inhibited them from misbehaving even when there was no one in the tower watching them. Knowing that they could be observed at any time caused them in effect to observe themselves at all times, and impose on themselves the constraints that those in charge of the prison wished to impose on them.104 Modern technologies likewise create a process of modulation whereby the quality and content of the attention given to surveillance subjects undergoes continuous modification based on their behaviour ‘sometimes in response to inputs from the subject but according to logics that ultimately are outside the subject’s control’.105 As Cohen explains, the very ordinariness of this process makes it extremely powerful, producing citizens who are very different from those who form the basis for the traditional liberal democratic tradition; lack of privacy deprives them of the breathing space to engage in socially situated processes of boundary management, thereby ensuring that ‘the development of subjectivity and the development of communal values do not proceed in lockstep’. This process is not only harmful to individual autonomy but is also at odds with broader public policy goals relating to liberal democratic citizenship and innovation. 1.52 An alternative metaphor suggested by Solove is Kafka’s ‘The Trial’, which highlights the issue of lack of control over information in a context where bureaucratic decisions are increasingly based on [page 27] dehumanised information processing.106 This metaphor is useful in emphasising that surveillance can be dangerous and oppressive, even where the intentions that underlie it are inherently benign. The danger

lies in the use of surveillance as a basis for automated decision-making, and the oppressiveness that this can create in contexts where the individual is unaware of what information is being collected and of the potential consequences that might follow. The latter may include some form of discrimination, including price and service discrimination.107 1.53 The multi-faceted nature of privacy has created a tendency for it to be protected on an ad hoc basis as the need has arisen, rather than via a single coherent body of law. As a result, an overview of the laws that protect privacy requires reference not only to the information privacy laws which provide the main focus of this book but also to common law developments and to a variety of other statutory provisions.

Information privacy laws Background 1.54 In 1980 the Organisation for Economic Co-operation and Development (OECD) published guidelines on the protection of privacy and transborder flows of personal data. The making of these guidelines was explained on the basis that the development of ‘automatic data processing’ had made it necessary to consider privacy protection in relation to personal data’ and concerns that disparities in national privacy laws ‘could hamper the free flow of personal data across frontiers’.108 The stated aim of the guidelines was to ‘harmonise national privacy legislation and, while upholding such human rights … at the same time prevent interruptions in international flows of data’.109 They were designed to achieve this by establishing minimum standards in the form of a set of principles on how personal information should be collected, stored, used and disclosed. The issue of statutory protection of privacy first received detailed consideration in Australia in a 1983 report on privacy by the ALRC,110 [page 28]

which recommended the enactment of a public sector law based on a modified version of the OECD principles. The enactment of the Privacy Act 1988 (Cth) gave partial effect to the ALRC’s recommendations by providing for a set of Information Privacy Principles to regulate information handling by Commonwealth government agencies. It was prompted also by concerns about government data-matching that had been triggered by proposals to introduce a national identity card,111 and fears that an identity card might pave the way for government surveillance activities of the type foreshadowed in Orwell’s science fiction work, Nineteen Eighty-Four. Although the Australia Card proposal was ultimately abandoned, it was replaced by the adoption of the tax file number as a unique identifier that could provide a reliable basis for matching data held on different databases. The Privacy Act therefore also contains specific provisions regulating the collection and use of tax file numbers. 1.55 In the years following the enactment of the Privacy Act, the European Union (EU) developed and adopted a new directive which governed the processing of personal data (the EU Directive).112 The directive required member countries to adopt consistent principles to protect personal data and also to impose constraints on the export of personal data to jurisdictions that lacked adequate privacy protection. This development prompted the amendment of the Privacy Act so as to include a new set of National Privacy Principles (NPPs) to regulate private sector organisations. 1.56 Privacy in Australia is regulated primarily via statutory information privacy and health records laws. The information privacy laws that are the main focus of this book are the Privacy Act 1988 (Cth) (Privacy Act), the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the Privacy and Data Protection Act 2014 (Vic) (Privacy and Data Protection Act), which are together referred to as the Information Privacy laws. These are supplemented by the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) and the Health Records Act 2001 (Vic) (Health Records Act), which are

together referred to as the Health Records Acts. [page 29] 1.57 Today, there are also Australian information privacy laws in the Australian Capital Territory, the Northern Territory, Queensland and Tasmania.113 These are summarised in Appendix II.

Commonwealth 1.58 The Privacy Act initially created a new regime for the handling of ‘personal information’ collected and held by the Commonwealth and established the Office of the Federal Privacy Commissioner. The Act was amended shortly after its enactment, to deal with government datamatching activities and the activities of credit providers, and was also extended to cover the Australian Capital Territory public sector.114 It was then amended again to include a set of separate provisions for the private sector. 1.59 Significant amendments were made to the Privacy Act by the Privacy Amendment (Enhancing Privacy) Act 2012 (Cth), which came into effect on 12 March 2014. These included: • amalgamating the former privacy principles regulating Commonwealth government agencies and private sector organisations into a single set of Australian Privacy Principles (APPs); • providing the new Australian Information Commissioner with a number of enhanced powers, including powers to conduct assessments of privacy performance for both Australian government agencies and businesses, to accept enforceable undertakings and to seek civil penalties in the case of serious or repeated breaches of privacy; • replacing the former credit reporting provisions with a new set of

provisions that allow for more comprehensive credit reporting, provide a simplified and enhanced correction and complaints process, introduce new civil penalties for specific breaches of credit reporting provisions, and require credit providers to be members of a recognised external dispute resolution (EDR) scheme to be able to participate in the credit reporting system; and • including new provisions on codes of practice about information privacy (APP codes) and a codes of practice for credit reporting (the CR codes) and enabling the Commissioner to develop and register binding codes that are in the public interest. [page 30] At the time of publication, the Privacy Act continues to be administered by the OAIC. If the OAIC is abolished, as planned, its Privacy Commissioner and privacy review functions will be transferred to the Australian Human Rights Commission.115 1.60 The Privacy Act, in Sch 1, requires Commonwealth government agencies and some private sector organisations to comply with a set of APPs that govern the handling of personal information. It also contains provision for entities to develop APP codes (either on their own initiative or on request by the Commissioner). These may set out how one or more of the APPs will be applied or impose additional requirements to those imposed by one or more of the APPs, as long as the additional requirements are not contrary to, or inconsistent with, those principles. Failure to comply with an APP or the requirements of an approved APP Code constitutes an ‘interference with privacy’. The Privacy Commissioner has power to waive the application of one or more of the APPs through a public interest determination. An important safeguard is that public interest determinations are subject to parliamentary disallowance.

1.61 In addition, tax file number (TFN) recipients, including private sector bodies such as banks, are required to comply with the Privacy (Tax File Number) Rule 2015 (TFN Rule) and are prohibited from making unauthorised requirements or requests for disclosure of TFNs.116 The TFN Rule provides that TFN information may be requested, collected, used or disclosed only for the purposes of carrying out responsibilities under taxation, personal assistance or superannuation law.117 It also requires TFN recipients to ensure that access to TFN information is restricted to persons performing these functions, and that the information is protected by reasonable security safeguards and disposed of appropriately by secure means.118 Reference should also be made to the discussion of the Data-Matching Program (Assistance and Tax) Act 1990 (Cth) at 1.111. Failure to comply with the TFN Rule constitutes an ‘interference with privacy’.119 Unauthorised use or disclosure of TFNs also constitutes an [page 31] offence under the Act;120 a person may be fined up to 100 penalty units, or imprisoned for up to two years, for a breach of these provisions.121 1.62 The Privacy Act contains a separate set of provisions that apply to the handling of personal credit reporting information (information about commercial credit is governed by the APPs). These are supplemented by regulations and a registered credit reporting code of practice. The credit reporting provisions in some cases replace equivalent obligations in the APPs and in other cases supplement them; they do not, however, affect the obligations of bodies that are subject to the APPs to comply with the APPs in respect of their handling of other categories of personal information not covered by Pt IIIA. 1.63

Part IIIA now permits the reporting of information about an

individual’s current credit commitments and his or her repayment history information over the previous two years (including positive information as well as information about defaults).122 Other key changes include broadening the definition of credit to include credit that is intended to be used to acquire, maintain, renovate or improve residential property for investment purposes, or to refinance such credit;123 prohibitions on the reporting of defaults of less than $150;124 and new provisions that govern the use of credit information for prescreening assessments,125 and allow an individual to freeze access to their credit-related personal information in cases of suspected identity theft or fraud.126 The new regime is intended to create ‘an “Australian” credit reporting system’ that does not contain foreign credit information or information derived from overseas credit providers, and that generally precludes the transfer of Australian credit information to overseas credit organisations.127 1.64 The Privacy Commissioner is responsible for oversight and enforcement of the Act and has the power to carry out audits, to [page 32] investigate complaints, to conduct ‘own motion’ investigations128 and to make determinations enforceable through the Federal Court, as discussed in Chapter 10.129 The Act also provides for external review by the Commonwealth AAT, as discussed in Chapter 10. 1.65 Complaints may be made on a representative basis130 and the amount of compensation that may be awarded is not subject to any limitations. The Privacy Act also contains provision for the Commissioner to recognise EDR schemes to handle particular privacy-related complaints and has issued a set of guidelines to assist EDR schemes to better

understand this process.131 1.66 The Commissioner has power to issue guidelines for the avoidance of acts or practices of an agency or an organisation that ‘may or might be interferences with the privacy of individuals, or which may otherwise have any adverse effects on the privacy of individuals’.132 Those guidelines provide useful guidance concerning the operation of the Act and the way in which it is administered in practice, although they do not have any legal force.

NSW 1.67 The first state law to be enacted was the Privacy Committee Act 1995 (NSW), which gave legislative effect to an administrative regime set up in 1994. This conferred power on the NSW Privacy Committee to conciliate complaints about breaches of privacy, but it did not establish any legally binding privacy standards and the committee’s decisions were not enforceable. 1.68 The Privacy Committee Act was repealed and replaced by the PPIP Act, which was enacted ‘against the prospect of the EU Directive coming into force in 1998 and at a stage when the Australian Government had [page 33] postponed proposed privacy legislation to cover the private sector’.133 Other identified rationales for its enactment included the need to meet the challenges posed by the rapid pace of technological change, to prevent corruption risks, and to meet public expectations and thus ensure trust in government.134 1.69 The PPIP Act, which came into effect on 1 July 2000, established the Office of the NSW Privacy Commissioner (which has now been subsumed within the NSW Information and Privacy

Commission) and contains a set of privacy standards that regulate the way NSW public sector agencies deal with personal information other than health information.135 The standards are based on a set of information privacy protection principles that derive from the OECD principles but differ from those contained in the APPs.136 1.70 The PPIP Act was amended in several important respects by the Privacy and Government Information Legislation Amendment Act 2010 (NSW), which merged the Offices of the Information Commissioner and the Privacy Commissioner, with the Information Commissioner heading the new Information Commission. Key changes to the PPIP Act included: • making the exercise of the Privacy Commissioner’s powers subject to oversight by the Parliamentary Joint Committee on the Office of the Ombudsman and the Police Integrity Commission; • repealing Pt 6A of the PPIP Act (by that removing the amendment of records); • requiring the Privacy Commissioner to consult with the Information Commissioner before issuing guidelines about the information protection principle that limits the disclosure of personal information; and • replacing the former Privacy Advisory Committee with an Information and Privacy Advisory Committee having the function of advising on matters relevant to the functions of the Privacy Commissioner and the Information Commissioner. 1.71 The NSW Privacy Commissioner provides oversight of the PPIP Act and has the power to investigate complaints and to carry [page 34] out conciliations.137 The Commissioner also has the power to issue guidelines138 and to publish a Personal Information Digest.139 This is a

potentially valuable aspect of the Act, although it is yet to be utilised. 1.72 Like the Privacy Act, the PPIP Act contains provision for the development and approval of legally binding privacy codes of practice which may modify the application to any public sector agency of any one or more of the information protection principles.140 In this case, however, the code must be made by the Attorney-General, although it must be initiated by the Privacy Commissioner or an agency, following consultation with the Commissioner.141 A code may relate to a specified class of information, a specified public sector agency or class of agencies, or a specified activity or class of activities. 1.73 A code may exempt a public sector agency, or class of public sector agencies, from the requirement to comply with any of the NSW Information Protection Principles (IPPs).142 In contrast to the position under the Privacy Act and the Victorian Privacy and Data Protection Act 2014, which require that a code must contain equivalent or higher standards than the principles that would otherwise apply, a NSW code cannot impose any requirements that are more stringent, or of a higher standard, than the IPPs.143 Another significant difference is that codes are not subject to parliamentary disallowance.144 As a consequence, the Act is potentially vulnerable to ‘repeal by installments’ if the minister is receptive to approval of codes that weaken its operation.145 1.74 The Privacy Code of Practice (General) 2003 contains a large number of waivers and/or variations in respect of a range of functions and schemes, including for specified categories of inter-agency transfers of personal information, specified disclosure of information on public registers, specified activities by the Human Services and Correction Services and Ageing, Disability and Home Care Services, specified uses [page 35] and disclosures by the Registry of Births, Deaths and Marriages and the

handling of personal information generated under the Domestic Violence Intervention Court Model. 1.75 An important feature that distinguishes the PPIP Act from the Commonwealth Privacy Act is the inclusion of specific provisions dealing with public registers.146 Section 57 precludes the disclosure of any personal information kept in a register unless the agency is satisfied that it is to be used for a purpose relating to the purpose of the register or the Act under which it is kept. Information contained in public registers is not, however, subject to the IPPs. 1.76 Other distinguishing features include the lack of any mechanism for making representative complaints, the absence of any auditing power or power for the Commissioner to conduct investigations in the absence of a complaint and the inclusion of a requirement for agencies to develop privacy management plans.147 1.77 An unusual feature of the Act is that the Privacy Commissioner also has power to informally investigate and conciliate complaints about persons and bodies that are not subject to the Act.148 This power was also shared by the NSW Privacy Committee. However, complaints other than those relating to breaches of the IPPs by public sector agencies are not subject to internal review or to review by the NCAT; the only process available is conciliation by the Commissioner. 1.78 Subject to ministerial approval, the Commissioner also has the power to make orders exempting agencies from complying with principles and codes, provided that he or she is satisfied that the public interest in requiring the public sector agency to comply with the principle or code is outweighed by the public interest in making that direction.149 1.79 Like the GIPA Act, the PPIP Act provides for a system of internal review and for external review by the NCAT, as discussed in Chapter 10.

1.80 The HRIP Act contains a separate regime for the regulation of health information, including health information held by private sector organisations, and requires compliance with a separate set of HPPs. It is [page 36] administered by the NSW Privacy Commissioner and subject to similar enforcement and review mechanisms to those in the PPIP Act. These are discussed in Chapter 10.

Victoria 1.81 Victoria became the second Australian state to have a privacy law, with passage of the Information Privacy Act 2000 (Vic). A key driver for its enactment was to promote increased public confidence in e-commerce. As explained by the first Victorian Privacy Commissioner, there was ‘a need to address the wariness of citizens and of consumers about their privacy. Unless confidence is built, the enormous potential benefits of new information technologies will be slow to improve public administration and commerce.’150 1.82 The Information Privacy Act was repealed and replaced by the Privacy and Data Protection Act 2014 (Vic), which merged Victoria’s information privacy and law enforcement data security regimes and amalgamated the offices of the Victorian Privacy Commissioner and the Commissioner for Law Enforcement Data Security within a new office of the Commissioner for Privacy and Data Protection. 1.83 The Privacy and Data Protection Act contains a set of privacy standards identical to those in the Information Privacy Act. The Information Privacy Principles (IPPs) in Sch 1 regulate the way in which Victorian government agencies deal with personal information other than health information.151 They are derived from, and in most respects are identical to, the former private sector NPPs in the Privacy Act 1988

(Cth). Organisations may seek approval of binding privacy codes of practice that modify the application to them of any one or more of the IPPs;152 organisations that obtain approval of a code can discharge their privacy obligations under the Act by complying with that code.153 In contrast to the position in NSW, these codes cannot impose any requirements that are less stringent than the standards imposed by the information protection principles.154 However, there is provision in the Act for the Commissioner to issue public interest determinations [page 37] (including temporary determinations) and also to authorise information usage arrangements that modify the application of the IPPs in relation to specified acts or practices for handling personal information. These procedures are outlined in more detail in Chapter 10. 1.84 The Privacy and Data Protection Act contains both a purpose clause and an objects clause. Its purposes, as expressed in s 1, include establishing a regime for the responsible collection and handling of personal information in the Victorian public sector, providing remedies for interferences with the information privacy of an individual, establishing a protective data security regime for the Victorian public sector and establishing a regime for monitoring and assuring public sector data security. The objects clause in s 5 of the Act refers to balancing the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector; and the public interest in promoting open access to public sector information with the public interest in protecting its security. It also refers to promoting awareness of responsible personal information handling practices in the public sector, the responsible and transparent handling of personal information in the public sector and responsible

data security practices in the public sector. 1.85 Oversight of the Privacy and Data Protection Act is provided by the Victorian Commissioner for Privacy and Data Protection, who is required to try to conciliate complaints and also has powers to carry out investigations. If there is an applicable code of practice that provides for the appointment of a code administrator, complaints at first instance must be made to that person.155 1.86 The Commissioner’s powers, other than those relating to protective security, are generally confined to personal privacy (which is defined so as to be confined to information privacy), but some extend also to the privacy of an individual,156 which may be broader in its application. The Commissioner is not limited to receiving complaints about breaches of privacy principles. Section 103(e)(ii) also allows for the investigation of an act or practice of an organisation that ‘may interfere with the privacy of an individual or may otherwise have an adverse effect on the privacy of an individual’. [page 38] 1.87 If conciliation is not reasonably practicable or is unsuccessful, an applicant has the option of seeking de novo review by the VCAT, as discussed in Chapter 10. 1.88 Like the PPIP Act, the Privacy and Data Protection Act includes specific provisions dealing with public registers.157 It also differs from the Privacy Act 1988 (Cth) in that it contains no provision for the making of representative complaints and no provision for public interest determinations. 1.89 The Privacy and Data Protection Act is supplemented by the Health Records Act, which requires both Victorian public sector agencies and private sector organisations to comply with a set of HPPs

in Sch 1. 1.90 The objects clause in s 6 states that the Health Records Act is intended to promote fair and responsible handling of health information by protecting the privacy of an individual’s health information held in the public and private sectors, providing individuals with a right of access to their health information and providing an accessible framework for the resolution of complaints regarding the handling of health information. 1.91 The Health Records Act is subject to oversight and review by the Victorian Health Services Commissioner and external review by the VCAT, as discussed in Chapter 10.

Commentary 1.92 The Information Privacy Acts share a number of similar features. They are based on sets of Information Privacy Principles loosely derived from the OECD guidelines, they are administered by a Commissioner, and they provide for enforcement procedures that emphasise conciliation but also allow for the making of legally binding orders, including orders for the payment of compensation. They also create offences for corrupt conduct. 1.93 None of the Information Privacy Acts contain an explanation of why the protection of personal data is important. The Privacy and Data Protection Act differs from the others in that it contains such an objects clause, but this simply refers to the ‘responsible’ collection and handling of information. The failure to clearly articulate the significance of privacy as a means of protecting individuals against abuse of power and as a precondition for the exercise of other important rights, such as freedom of expression,

[page 39] creates the danger that it will be allowed to give way to other competing interests, including commercial interests. This is significant, as the collection, matching and analysis of large quantities of personal data enhances the efficiency of both governments and private sector bodies. While privacy needs to be balanced against other competing interests, it is important that it should be given appropriate weight when finding the appropriate balance. The current drafting of each of these Acts arguably gives insufficient precedence to values that underlie the concept of privacy, and fails to ensure that the decision is interpreted so as to further the objective of preserving individual privacy. 1.94 The Commonwealth Privacy Act is also limited insofar as it does not apply to public registers. This is problematic because public registers can facilitate abuse of privacy by publishing personal information, with no control over its secondary use. 1.95 A further shortcoming that is common to all of the Information Privacy Acts is the extent to which they are limited in their application to publicly-available information. That exclusion arguably has the potential to considerably undermine their potential to protect information, given the extent of information that is potentially available from public sources. Although it may seem at first glance to be logical to exclude information that is already in the public domain, this ignores the fact that information varies in its significance according to its context. For example, a person’s name and address in the context of a child protection agency file has quite different connotations from its inclusion on an electoral role. 1.96 Another issue of concern is the fact that these laws do not form part of a broader Australia-wide privacy regime. Modern technology makes it possible for information to be transferred quickly and at low cost across the boundaries of different jurisdictions and between the

private and public sectors. However, the handling of personal information is subject to different rules in the private and public sectors, and there are parts of Australia that lack such rules altogether. There are also significant parts of the private sector and significant categories of private sector information that remain outside the scope of the private sector provisions in the Privacy Act.

Common law 1.97 There are a number of common law actions that offer some limited protection for different aspects of privacy.158 For example, assault [page 40] and battery may provide some incidental protection for bodily privacy, and the actions for trespass and nuisance offer some protection for territorial privacy. Similarly, breach of contract, passing off, defamation and breach of confidence (in its traditional form) have provided some limited protection for information privacy. The action of breach of confidence was initially restricted to situations where there was some relationship between parties or the transmission of information was on an ‘in confidence’ basis. However, it was subsequently extended to cover information that had wrongfully fallen into the hands of a person who had no right of access to it.159 The latter development paved the way for a further expansion of the doctrine by courts in the United Kingdom, as outlined below. 1.98 Australian common law has traditionally failed to offer any specific protection for privacy beyond the indirect protection available via the traditional equitable action for breach of confidence. The decision of the High Court in Victoria Park Racing and Recreation Grounds Co Limited v Taylor (1937) 58 CLR 479; [1937] ALR 597 was for a long time regarded as presenting a major obstacle to the

development of any specific privacy tort in Australia.160 However, the High Court in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 [2001] HCA 63 made it clear that this should no longer be regarded as the case.161 Callinan CJ commented at 328 that: [H]aving regard to current conditions in this country, and developments of law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.

[page 41] Gummow and Hayne JJ expressed a preference for the methodology advocated by Deane J in Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414; 56 ALR 193 for developing and adapting recognised forms of action to meet new situations.162 However, their Honours expressly refrained from stating a concluded view concerning the development of a privacy tort.163 1.99 The position in Australia contrasts with that in a number of other common law jurisdictions that provide common law protection for privacy, either via an extension of the action for breach of confidence or via specific privacy torts. 1.100 In the United Kingdom the enactment of the Human Rights Act 1998 (UK), which embodies a right to privacy (and also a right to freedom of expression), has paved the way for increased common law protection of privacy.164 This has been achieved by extending the action of breach of confidence to provide relief in relation to the public disclosure of personal information.165 The traditional action has been extended in its scope by removing the second strand of the traditional test, which requires not only that information should be confidential in nature but also that it should have been imparted in confidence (or in circumstances that give rise to a duty

of confidentiality). In Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457, the House of Lords upheld an action by the fashion model Naomi Campbell in respect of photographs of her taken outside a meeting place of Narcotics Anonymous. The rationale for that conclusion essentially hinged on the intrinsically private nature of the information (that is, the fact that it related to her treatment for drug addiction).166 If the plaintiff establishes a reasonable expectation of privacy, the court is required to [page 42] weigh the competing interests of privacy and freedom of expression ‘in the light of an “intense focus” upon the individual facts of the case’.167 Whether or not there is a reasonable expectation of privacy requires consideration of all of the circumstances, including ‘the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher’.168 1.101 An alternative model, which derives from the United States, is to protect privacy via specific privacy torts. In Hosking v Runting [2004] NZCA 34, the majority of the New Zealand Court of Appeal confirmed that New Zealand law recognised a privacy tort which required demonstration of the existence of facts in respect of which there was a reasonable expectation of privacy and publicity that would be considered highly offensive to the reasonable person. However, the court refused to restrain the publication of unauthorised photographs of the Hoskings’ children. In its view, the photographs were not offensive and there was no reasonable expectation of privacy, as the photographs were taken while the children were with their mother in a public place. More recently, in C v Holland [2012] NZHC 2155; [2012] 3 NZLR

672, Whata J recognised an equivalent intrusion tort. This requires demonstration that there has been an intentional and unauthorised intrusion into seclusion (namely, intimate personal activity, space or affairs) involving infringement of a reasonable expectation of privacy that is highly offensive to a reasonable person. 1.102 It is arguable that the different approaches to the development of common law protection of privacy in the United Kingdom and New Zealand derive at least in part from the models they use to protect human rights. The Human Rights Act 1998 (UK) is based on the European model and contains an explicit privacy right similar to that in Art 17 of the ICCPR as well as a right to freedom of expression. These rights carry equal weight and are required to be balanced against each other in the event of conflict; this approach is reflected in the case law relating to the extended action for breach of confidence. In contrast, the Human Rights Act 1990 (NZ) follows the pattern in the United States Constitution and provides protection for freedom of expression but not for privacy [page 43] per se.169 The stronger weighting towards freedom of expression in the New Zealand privacy tort is reflected in the high threshold requirement that the disclosure (or intrusion) must be ‘highly offensive’. Australia differs from each of these countries in that it lacks any Australia-wide human rights framework, although the Victorian and Australian Capital Territory Human Rights Charters170 are both based on the ICCPR, which contains equal privacy and freedom of expression rights. The Australian Human Rights Commission Act 1986 (Cth) also includes the ICCPR as a schedule but does not give it local effect. 1.103 It remains unclear which (if any) of the above two approaches will be followed in Australia. While there have been two decisions of lower courts that have found in favour of plaintiffs on privacy grounds

(one on the basis of a privacy tort171 and the other on the basis of both a privacy tort and an expanded action for breach of confidence),172 no court of record has yet taken up the invitation of the court in the Lenah case. However, in Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236, the Victorian Court of Appeal has moved further in the direction of acceptance of an expanded breach of confidence, by clearing the way for plaintiffs to obtain damages for non-economic loss when suing for breach of confidence.173 The continuing uncertainty concerning common law protection has led to proposals by the Australian, NSW and Victorian Law Reform Commissions for the enactment of a statutory cause of action to protect privacy.174 The ALRC considered this issue most recently in the context of a reference for an inquiry into the protection of privacy in the digital era. Its 2014 report175 recommended that any statutory right of action should be based on a tort that protects against two types of privacy invasions — [page 44] intrusion upon seclusion and misuse of private information.176 That tort would be actionable only where a person in the position of the plaintiff has a reasonable expectation of privacy in all of the circumstances,177 the invasion is intentional or reckless178 and the invasion of privacy is ‘serious’ in nature.179 In addition, the court would need to be satisfied that the public interest in privacy outweighed any countervailing public interest.180 The enactment of a privacy tort received support from the House of Representative Standing Committee on Social Policy and Legal Affairs in its report, Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy.181 However, a spokesman for the AttorneyGeneral, George Brandis, has stated that: ‘The government has made it clear on numerous occasions that it does not support a tort of privacy’.182

Other statutory protection 1.104 There are also a number of other laws that protect privacy directly or indirectly.

Statutory secrecy provisions 1.105 There are a large number of statutory secrecy provisions that make it illegal for public servants to disclose personal information acquired in the course of their duties or which impose administrative consequences for improper disclosures. Their interrelationship with FOI legislation is regulated by the secrecy exemption discussed in Chapter 8. 1.106 In 2009 the ALRC completed a review183 which identified 506 secrecy provisions in 176 pieces of Commonwealth legislation, including two broad-ranging provisions in the Crimes Act 1914 (Cth). The official secrecy provision in s 79 of the Crimes Act creates a number of offences relating to the use or disclosure of official secrets, [page 45] which carry penalties of up to seven years’ imprisonment. The other key provision is s 70, which operates to criminalise disclosures by Commonwealth officers that are in breach of secrecy obligations and carries a maximum penalty of two years’ imprisonment. The secrecy obligations to which s 70 applies include the non-disclosure obligations in reg 2.1 of the Public Service Regulations 1999 (Cth), which states that, subject to a number of exceptions, an Australian public service employee must not disclose information obtained or generated in connection with his or her employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation of policies or programmes.184 It also forbids the disclosure of information that was, or is to be, communicated in confidence within the government or was received in

confidence by the government from a person or persons outside the government.185 The ALRC recommended replacement of both of the secrecy provisions in the Crimes Act with a new general secrecy offence targeted at behaviour that harms essential public interests. This targeted approach is arguably most significant in relation to s 70 given that its wording does not depend on any harm to the public interest and is based on a general non-disclosure duty. Other important features of the ALRC’s recommended general secrecy provision include requirements for intention as the fault element attaching to the physical element consisting of disclosure186 and for intention or recklessness as to whether the disclosure of information would harm, or was reasonably likely to harm, one of the public interests specified.187 The ALRC also recommended the adoption of a set of principles to guide the creation of new offences and the review of existing offences. These include the important proposition that such offences are only warranted where they are necessary and proportionate to the protection of essential public interests of sufficient importance to justify criminal sanctions.188 [page 46] 1.107 NSW also has a number of laws that impose statutory secrecy requirements. These include, but are not confined to, the list of laws found in cl 1 of Sch 1 of the GIPA Act. Research carried out in 2007 identified 45 NSW Acts containing secrecy provisions.189 1.108 Victoria differs from the Commonwealth and NSW in that its secrecy exemption provision lacks any discrete list of secrecy laws that take precedence over the disclosure requirements in the Victorian FOI Act. However, the case law under s 38 of the Victorian FOI Act provides some useful evidence of the extensive number of statutory secrecy provisions in existence. Research carried out in 2007 identified

45 Victorian Acts containing secrecy provisions.190

Human rights laws 1.109 The Australian Human Rights Commission Act 1986 (Cth) gives the Australian Human Rights Commission functions in relation to a number of international treaties to which Australia is a signatory, including Art 17 of the ICCPR, as discussed above at 1.44. Those functions in relation to privacy are currently exercised primarily by the Australian Information Commissioner. However, there are some privacy functions that fall outside the operation of the Privacy Act where the Australian Human Rights Commission has a more substantial continuing role. These include, for example, the right to private life.191 1.110 The Charter of Human Rights and Responsibilities Act 2006 (Vic) includes similar privacy protection to that available under the ICCPR.192 It does not give individuals any new causes of action, but it requires public authorities to act in a way consistent with Charter rights.193 It also requires courts, as far as is reasonably possible, to interpret statutory provisions in a way that is compatible with the human [page 47] rights that it protects.194 There have been a number of decisions by the Victorian courts and tribunal that have considered this right in a variety of different contexts.195

Data-matching restrictions 1.111 The Data-Matching Program (Assistance and Tax) Act 1990 (Cth) regulates the use of TFNs in comparing personal information held by the Australian Taxation Office and by agencies, such as Centrelink and the Department of Veterans’ Affairs, that provide government benefits. The current guidelines came into effect in February 1995.

An act or practice that breaches Pt 2 of the Data-Matching Program (Assistance and Tax) Act or of the guidelines in force under it constitutes an actionable interference with privacy of the individual for the purposes of the Commonwealth Privacy Act.196 Data matching without use of TFNs is regulated via a set of advisory guidelines.197

Electronic health records 1.112 The Australian Information Commissioner also regulates the handling of personal information under the electronic health record system that has been established under the Personally Controlled Electronic Health Records Act 2012 (Cth) (PCEHR Act). The PCEHR Act imposes limitations of the handling of health information included in an eHealth record. Unauthorised collection, use or disclosure of eHealth record information is both a contravention of the PCEHR Act and an interference with privacy. The Commissioner’s role includes investigating complaints about the mishandling of health information in an individual’s eHealth record and conducting ‘own motion investigations’. [page 48]

Spent convictions regimes 1.113 Spent convictions regimes restrict access to information about older records relating to minor crimes and may also limit the convictions a person is required to reveal on questioning and about which employers and others can ask questions. They therefore protect the privacy of (some) criminal records information, thereby reducing the continuing indirect punishment resulting from disclosure of that information and enhancing prospects for rehabilitation.198 1.114

The Commonwealth Spent Convictions Scheme, which was

implemented in 1990 via amendments to the Crimes Act 1914 (Cth), applies to information about minor federal, state and foreign offences and is subject to oversight by the Australian Information Commissioner. It applies to criminal convictions for minor federal, state and foreign offences after 10 years (or five years in the case of convictions committed while a minor) and in respect of offences for which the individual was not sentenced to more than 30 months of imprisonment (provided that he or she has not reoffended during the waiting period). Subject to some exceptions, an individual whose conviction is protected does not have to disclose the conviction to any person, including a Commonwealth authority. Commonwealth authorities are prohibited from accessing, disclosing or taking into account spent convictions of Commonwealth offences. The Act deals also with pardons and quashed convictions.199 1.115 The Criminal Records Act 1991 (NSW) regulates the handling of information relating to NSW spent convictions. It differs from the Commonwealth regime in a number of key respects. For example, it applies only to offences for which the individual was not sentenced to more than six months imprisonment. It also provides for a shorter three-year waiting period in relation to offences committed while a juvenile. 1.116 Victoria is the only Australian jurisdiction that lacks a spent convictions law. It has instead an administrative regime that regulates disclosure of criminal records information by the Victorian Police.200 This regime generally limits the disclosure of information about minor [page 49] criminal offences after 10 years (or five years in the case of offences committed as a juvenile).

Telecommunications laws

1.117 Australia has two Commonwealth laws that regulate privacy of telecommunications — the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth). These laws, which are both administered by the Australian Communications and Media Authority (ACMA), fall into two groups: laws that protect the telecommunications data (including the content of telephone calls, text messages and email); and laws that protect against specified unsolicited marketing activities. 1.118 The former deal with privacy in two ways: they prohibit certain activities that are invasive of privacy and they establish regimes that facilitate and regulate access to telecommunications data by national security and law enforcement agencies. 1.119 Part 13 of the Telecommunications Act deals with the privacy of personal information held by telecommunications carriers and carriage service providers. It creates criminal sanctions for the unauthorised use or disclosure of information that comes into the possession of internet service providers (ISPs) and their employees in the course of ISP business, including information about the content or substance of communications, and transactional data. However, it also contains a number of specific exceptions including in respect of uses and disclosures in connection with the operation of enforcement agencies as required or authorised under a warrant. The Telecommunications Act also contains provisions in Pt 6 for the voluntary development of industry codes and standards that are given statutory force once developed and registered by the Australian Communications Authority.201 The Australian Information Commissioner must be consulted on codes and standards that cover privacy. The main code that deals with privacy is the Telecommunications Consumer Protection Code.202 There is also a code for calling number displays.203 [page 50]

The Australian Information Commissioner also has a role in monitoring compliance with provisions that require carriers and carriage service providers to make records of disclosures of personal information.204 Individual complaints about breaches of the code rules are handled by an industry-funded Telecommunications Industry Ombudsman. 1.120 The Telecommunications (Interception and Access) Act contains general prohibitions in respect of the interception of telecommunications and access to stored telecommunications. It also establishes specific regimes for lawful interception of telecommunications and access to stored data. These regimes are based on warrants, but the procedures differ. In the case of interceptions, warrants are issued to the Australian Security Intelligence Organisation (ASIO) by the Commonwealth Attorney-General, and to law enforcement agencies by an ‘eligible judge’. In the case of access to stored communications, ASIO can access stored communications using its existing interception warrants while enforcement agencies need to obtain a stored communications warrant from an ‘issuing authority’. These procedures offer more protection in respect of interceptions (for example, they are permitted in respect of a narrower range of offences) for the reason that live communications are regarded as ‘more spontaneous’ than stored communications which ‘provide the opportunity for “second thoughts” prior to transmission’.205 As noted by Rodrick, it is open to question whether an email or SMS message should necessarily be regarded as more considered than comments made during a phone conversation.206 It is also unclear why the opportunity for consideration is necessarily a relevant criterion in determining the extent of privacy protection granted in respect of it. The Act also contains a separate regime that regulates access to other telecommunications data (that is, transactional, as opposed to content, data). This allows for authorised access without any need for a warrant. The lesser protection is based on the assumption that the disclosure of transactional data is less privacy invasive than the disclosure of content data. However, it is arguable that technological developments make this assumption increasingly incorrect. This is especially so in the case of

mobile phones, given that data relating to their usage ‘reveals information about actual habits and associations in ways that the content of any specific individual communication cannot’.207 This is further explained [page 51] by Cavoukian, who points out that metadata provides considerable detail about multiple aspects of individuals’ personal lives, including ‘raw material for the creation of detailed, comprehensive, time-stamped map-lines of who is communicating with whom, when, how often, and for how long’.208 The Telecommunications (Interception and Access) Act was amended in 2015 to impose an obligation on telecommunications providers and ISPs to retain specified types of metadata for two years. It was also amended to include a new journalist warrant regime that requires ASIO and enforcement agencies to obtain a warrant prior to authorising the disclosure of telecommunications data to identify a journalist’s source. The new regime is open to criticism on a number of grounds, including that it is a disproportionate response to fighting serious crime and terrorism, that it creates a goldmine of useful personal information for hackers to target and that it will have a chilling effect on confidential sources of information. At the time of publication, the Secretary to the Attorney-General’s Department was required to consult the Information Commissioner in relation to privacy matters before putting in place requirements for authorising access to telecommunications data information or documents by ASIO, law enforcement bodies and foreign law enforcement bodies.209

Laws regulating unsolicited marketing activities 1.121 The Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) are administered by the ACMA and protect privacy in

relation to unsolicited marketing.210 The Spam Act prohibits the sending of unsolicited commercial electronic messages without consent both to and from Australia. It also prohibits the sending of commercial electronic messages without accurate sender information and an unsubscribe facility, the sending of commercial electronic messages to non-existent addresses and the supply, acquisition and use of addressharvesting software and harvested-address lists for use in sending unsolicited commercial electronic messages. The Do not Call Register Act enables individuals to place a residential or mobile telephone number that is used primarily for domestic purposes on a Do Not Call register. Telemarketers must then cease calling that number within 30 days; failure to do so results in a [page 52] fine. This prohibition is subject organisations, including charities.

to

exceptions

for

specified

In NSW and Victoria, the Fair Trading Act 1987 (NSW) and the Australian Consumer Law and Fair Trading Act 2012 (Vic) also regulate door-to-door sales and telemarketing activities.

Other criminal laws that protect aspects of privacy 1.122 Privacy also receives protection via criminal laws that prohibit specific egregious activities that may impact adversely on privacy. 1.123 It is an offence under the Criminal Code Act 1995 (Cth) to use a telecommunications carrier to access or transmit child pornography material.211 The Criminal Code Act prohibits a number of activities incidental to surveillance, such as being in possession of a telecommunications interception device,212 and causing unauthorised access, modification or impairment to data held in a computer with intent to commit a serious offence.213

1.124 The Crimes Act 1900 (NSW) contains a number of offences relating to acts of voyeurism. Offences include the non-consensual observation of a person who is engaged in a ‘private act’214 for the purposes of obtaining sexual arousal or sexual gratification, filming a person engaged in a private act,215 filming a person’s private parts216 and installation of devices to facilitate observation or filming.217 These offences carry penalties of up to two years’ imprisonment or up to five years in ‘circumstances of aggravation’.218 The Act also makes it an offence to for a person to be in or near a building without reasonable cause with the intention of peeping or prying on another person219 and to disseminate child abuse material.220 [page 53] 1.125 The Crimes (Domestic and Personal Violence) Act 2007 (NSW) also makes it an offence punishable by up to five years’ imprisonment to stalk or intimidate another person (or to attempt to do so) with the intention of causing that person to fear physical or mental harm.221 Stalking includes ‘the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity’.222 1.126 The Summary Offences Act 1966 (Vic) contains a number of offences relating to upskirting. It is an offence to use a device to intentionally observe or visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.223 There is also a further offence for publishing material visually captured.224 1.127 The Crimes Act 1958 (Vic) makes it an offence punishable by up to 10 years’ imprisonment to stalk another person with the intention of causing that person physical or mental harm, or causing that person

to fear for his or her safety.225 Behaviour that can amount to stalking includes following a person, causing an unauthorised computer function in that person’s computer, tracing that person’s use of the internet, email or other electronic communications, loitering outside a building, and generally keeping a person under surveillance.226 1.128 The Crimes Act 1958 (Vic) also criminalises the production of child pornography227 and contains further offences relating to unauthorised modification or impairment of a computer.228

Surveillance device laws 1.129 Surveillance device laws protect privacy by regulating the use of specified surveillance devices. They not only protect privacy via general prohibitions against uses of surveillance devices but also permit and regulate surveillance activities by national security and law enforcement bodies. [page 54] 1.130 Surveillance devices play a key role in facilitating surveillance. Their use is regulated in Australia from two different perspectives — via general prohibitions, which prohibit or limit specified uses of defined categories of surveillance devices and via regimes that facilitate the use of surveillance devices by law enforcement and national security bodies subject to compliance with defined procedures (including warrant-based procedures). 1.131 The general restrictions on the use of surveillance devices exist only at the state level. The laws in NSW and Victoria are summarised below. Those in other states and territories are listed in Appendix II. 1.132 The Surveillance Devices Act 2007 (NSW) prohibits the use of surveillance devices in specified circumstances, creating exceptions for

authorised law enforcement activities. It prohibits: • the deliberate installation, use or maintenance of a listening device to overhear a ‘private conversation’229 to which the person using the device is not a party;230 • the deliberate installation, use or maintenance of an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if it involves (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle; or (b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object;231 • the deliberate installation, use or maintenance of a tracking device to determine the geographical location of: (a) a person — without the express or implied consent of that person; or (b) an object — without the express or implied consent of a person in lawful possession or having lawful control of that object;232 • the deliberate installation, use or maintenance of a data surveillance device on or in premises to record or monitor the input of information [page 55] into, or the output of information from, a computer on the premises if it involves: (a) entry onto or into the premises without the express or implied consent of the owner or occupier of the premises; or (b) interference with the computer or a computer network on the premises without the express or implied consent of the person having lawful possession or lawful control of the computer or computer network; 233 • the publication or communication to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come

to the person’s knowledge as a direct or indirect result of a prohibited use of a listening device, an optical surveillance device or a tracking device;234 • subject to a number of exceptions,235 the possession of a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by prohibited use of a listening device, optical surveillance device or tracking device;236 • the manufacture, supply, offering to supply or possession of a data surveillance device, listening device, optical surveillance device or tracking device with the intention of using it, or it being used, in a prohibited way;237 and • subject to a number of exceptions,238 the publication or communication to any person, any information regarding the input of information into, or the output of information from, a computer obtained as a direct or indirect result of prohibited use of a data surveillance device.239 [page 56] These offences all carry maximum jail terms of up to five years’ imprisonment. 1.133 The Workplace Surveillance Act 2005 (NSW) regulates the use of surveillance devices by employers to monitor employees. It generally prohibits the surveillance of employees at work, except where employees have been given notice or where the employer has a covert surveillance authority. 1.134 The Surveillance Devices Act 1999 (Vic) prohibits the use of listening, optical surveillance, tracking and data surveillance devices240 in specified circumstances, creating exceptions for authorised law enforcement activities. It prohibits any person from: • using a listening device to overhear ‘a private conversation’241 to

• • •

•

which the person using the device is not a party;242 using an optical surveillance device to observe ‘a private activity’243 to which the person using the device is not a party;244 installing, maintaining or using a tracking device;245 subject to exceptions,246 communicating or publishing a record of a private conversation or private activity, when made using one of the devices above; or247 installing, using or maintaining an optical surveillance device or a listening device to observe, listen to, record or monitor the activities [page 57] or conversations of a worker in a toilet, washroom, change room or lactation room in the workplace.248

The Act also prohibits a law enforcement officer (but not another person) from using a data surveillance device without authorisation or communicating information obtained using such a data surveillance device249 and, subject to exceptions,250 from communicating or publishing information obtained via the use of a data surveillance device.251 The Surveillance Devices Act was extensively reviewed in the context of a broader review of surveillance in public places by the Victorian Law Reform Commission, which made a number of recommendations to address gaps and deficiencies in its operation.252 1.135 The laws that facilitate and regulate the use of surveillance devices by law enforcement bodies exist at both the Commonwealth and state level and are based on a model regime recommended in a report by the Joint Working Group on National Investigation Powers of the Standing Committee of Attorneys-General and Australasian Police Ministers’ Council.253

1.136 The Surveillance Devices Act 2004 (Cth) regulates the installation, use and maintenance of surveillance devices by the Australian Federal Police and other specified agencies in relation to their investigation of specified categories of offences and for other specified purposes. In general, it permits the use of surveillance devices by law enforcement bodies only with a warrant issued by a judge or an AAT member. The procedures applicable to national security agencies are contained in the Australian Security Intelligence Organisation Act 1979 (Cth).254 1.137 The NSW and Victorian Surveillance Device Acts contain similar provisions regulating the use of surveillance devices by specified law enforcement agencies. [page 58]

PUBLIC RECORDS LAWS 1.138 Also of relevance to the subject matter of this book are the laws that regulate the overall management, preservation and use of public records. The three laws which provide the main focus of this book are the Archives Act 1983 (Cth) (Archives Act), the State Records Act 1998 (NSW) (State Records Act) and the Public Records Act 1973 (Vic) (Public Records Act). These are referred to collectively as the Public Records Acts. The Public Records Acts provide for the preservation of, and make available access to, older records that have a continuing value for a variety of administrative, legal, social, educational and research purposes. They also provide for the oversight and promotion of good record-keeping practices and procedures designed to ensure the appropriate preservation of records. 1.139

Good record keeping and efficient records management are not

only vital for effective business management but are also an indispensable element of transparency, and thus of accountability. They provide the evidence of what has happened and facilitate the operation of rights of access under FOI legislation, thereby making possible an informed evaluation of governmental activities. They also further the objectives of information privacy by reducing the possibility of inadvertent and improper disclosure of personal information. 1.140 The Commonwealth, Victoria and NSW all have laws described by the ALRC as second generation laws that are characterised by mandatory transfer of certain records to an archival authority after a specified period, some provision for the regulation or guidance of agency record management and a public right of access to older records.255 These laws are designed to ensure the preservation of records while they are required for identifiable administrative or business purpose; they permit the destruction of records in accordance with specific schedules while requiring the archiving of those records that have enduring value to governments, the general community and individuals or groups within it. It should be noted, however, that they do not create any specific obligations to create records. 1.141 The Archives Act was specifically enacted to dovetail with the Commonwealth FOI Act. A feature that distinguishes it from its state [page 59] equivalents is the fact that it contains specific rights of access that are subject to detailed exemption provisions, and procedures for review similar to those contained in FOI legislation. 1.142 The State Records Act, which replaced the Archives Act 1960 (NSW), is intended to ensure the better management of government

records and improved record keeping. Although it provides for public access to records, the provisions dealing with access and restrictions on access are very minimal in their content and it provides no rights of review in respect of decisions to withhold access to documents that fall within its scope. 1.143 The equivalent legislation in Victoria dates back to 1973 and has not been substantially amended in recent years. As with its NSW equivalent, the provisions in the Public Records Act dealing with access and restrictions on access are very minimal in their content, and the Act provides no rights of review in respect of decisions to withhold access to documents that fall within its scope.

THE INTERRELATIONSHIP BETWEEN FOI, INFORMATION PRIVACY AND PUBLIC RECORDS LAWS FOI and information privacy 1.144 In most cases public sector bodies that are covered by the FOI Acts will be subject also to the equivalent Information Privacy Acts. For example, bodies that are subject to the Commonwealth FOI Act will, in general, be regulated also by the APPs in the Commonwealth Privacy Act. However, although these regimes generally apply uniformly to bodies at the core of government, they are less uniform in their coverage of bodies at the fringes of the public sector such as government business enterprises (GBEs). A partially privatised state utility may be included as a prescribed body for the purposes of an FOI law but not for the purposes of the public sector information privacy law in the same jurisdiction. Alternatively, a body may be specifically excluded from the operation of FOI legislation but not from the equivalent information privacy legislation. 1.145 The FOI Acts and the Information Privacy Acts all provide rights of access to documents (although the PPIP Act and the HRIP Act

extend more broadly to information) and also contain provisions designed to protect the privacy of natural persons. However, they each have a different emphasis. FOI laws are concerned primarily with transparency, and protect privacy only to the extent that it can be demonstrated that non-disclosure is, on balance, in the public interest. In contrast, the [page 60] main focus of information privacy legislation is on data protection, and it provides for transparency only to the extent that it enhances the informational privacy rights of individuals. There are two main areas of potential friction or overlap. The first is where a document that is subject to protection from disclosure under an information privacy law is required to be disclosed under FOI legislation. The second is where a person who has rights of access and amendment under information privacy laws has similar rights that are subject to differently-worded exceptions under FOI legislation. In general, potential conflicts are avoided by giving precedence to FOI laws. The specific prohibitions against the disclosure of personal information contained in information privacy laws are subject to a number of exceptions, including those that allow for the disclosure of information where that disclosure is required by law. As a result, where access to a document is required under FOI legislation, the obligation not to disclose it under privacy legislation must give way to those disclosure requirements. Furthermore, some information privacy laws are generally administered in a way that requires applicants, where practicable, to make use of FOI mechanisms, as is the case in Victoria. Consequently, access to public sector documents is determined having regard to the relevant FOI exemption provisions (including the privacy exemptions contained within them)256 rather than by the principles contained in the applicable information privacy law.257

1.146 As discussed in Chapter 6, FOI laws contain exemptions designed to protect the personal privacy of individuals whose personal information is recorded in documents to which access is sought. Some of them also contain requirements to consult with information subjects and confer on them rights to seek review of any decision to, or to be joined as parties in any proceedings by FOI applicants to seek review of a decision not to, grant access to documents containing their personal information. The personal privacy exemptions are not absolute in their terms and do not embody the limitation of use principles contained in information privacy laws. Instead, they require a balancing of the potential harm to the individual whose personal information is recorded in a document against [page 61] the public interest in granting the applicant access to it. Factors that are taken into account in balancing these competing interests are discussed in Chapter 6. 1.147 Because of the lack of symmetry in the scope of the FOI Acts and Information Privacy Acts, there may be public sector bodies that are subject to public sector information privacy laws but not to FOI legislation. Requests for access to, and amendment of, personal records held by these bodies are subject to the procedures outlined in the relevant information privacy legislation. In the case of NSW, there are no rights of amendment available under the GIPA Act; they must be exercised under the PPIP Act (or, in the case of health records, under the HRIP Act). The exercise of the amendment rights provided in the Commonwealth and Victoria FOI Acts is dependent on having previously obtained lawful access to the relevant documents. Persons who fail to satisfy this requirement must use the procedures provided in

any relevant information privacy or health records privacy legislation. Applicants in Victoria may also need to use the information privacy procedures in cases where the personal information for which they seek amendment falls outside the definition of a document relating to their ‘personal affairs’. Whereas the Commonwealth FOI Act and the GIPA Act both use the same language as their equivalent privacy law (that is, they refer to ‘personal records’), the Victorian FOI Act still refer to ‘personal affairs’. This means that to the extent that the expression ‘personal affairs’ has been interpreted as having a more restricted operation than ‘personal information’ (see 6.14–6.18), the Victorian FOI Act will have a narrower application in relation to amendment rights than the Privacy and Data Protection Act. That difference in wording does not affect an applicant’s entitlement to access, since the Victorian FOI Act does not differentiate between access to personal documents and access to other categories of information. A further significant difference in the case of the NSW legislation is that the GIPA Act is confined to documents, whereas the PPIP Act and the HRIP Act apply instead to information. 1.148 The position in relation to health information is further complicated by the fact that health records in the Australian Capital Territory, NSW and Victoria are subject to regulation by health records legislation that applies to health information in the private, as well as the public, sector. As a result, private sector health records in Victoria and NSW (as well as in the Australian Capital Territory) may be subject to regulation by two different sets of privacy rules. [page 62] In the case of Victoria, the Health Records Act again gives precedence to the mechanisms for access and amendment contained in the Victorian FOI Act. However, it requires compliance with separate and additional procedures to those required under the Privacy Act or

under any code enacted under the Privacy Act to cover the health records. The position in NSW is similar; the HRIP Act also provides for separate procedures. While the privacy obligations under the Health Records Acts are generally similar to those under the Privacy Act, there are some important differences both in terms of their scope (for example, their coverage of information contained in records created before the enactment of health records laws) and the wording of exceptions. Not all private sector bodies are required to comply with the Privacy Act; whether or not they are required to do so will depend on whether they fall within the exceptions that are discussed at 2.69–2.75. 1.149 In the case of the GIPA Act there is an issue that arises because of the fact that the definition of ‘personal information’ is subject to more exceptions in the case of the PPIP Act than the GIPA Act. This issue is discussed in guidelines issued by the NSW Information Commissioner.258 The guidelines refer by way of example to the exclusion from the GIPA Act definition of information about an individual’s suitability for appointment or employment as a public sector official. They comment in respect of public sector recruitment records that: … a person does not have a right to his or her own … documents under the PPIP Act, but there is a public interest in favour of disclosing that information under the GIPA Act.259

The guidelines also point out that a request for access to a recruitment panel’s comments about another applicant, ‘would amount to revealing the personal information of a third party, which would enliven the consideration against disclosure in 3(a) in the table at s 14 of the GIPA Act’, which provides that there is a public interest consideration against disclosure of information that could reasonably be expected to reveal an individual’s personal information, but not the consideration in cl 3(b) in respect of information that contravenes an Information Privacy Principle in the PPIP Act.260

[page 63]

FOI and public records 1.150 Public records legislation establishes the infrastructure for information management within the public sector and contains important restrictions on the disposal and destruction of records, thereby making possible the effective exercise of the publication and access provisions in FOI legislation.261 It also complements FOI legislation by providing a less expensive and less restrictive avenue for access to older records.262 While both regimes encompass public sector records, the coverage of public records legislation is broader in the range of bodies to which it applies. FOI legislation makes more transparent the record keeping of agencies, by requiring them to publish and annually update information concerning the types of records they keep and, in the case of the Commonwealth FOI Act and the GIPA Act, to comply with the extensive publication requirements outlined in Chapter 11. It also adds to the restrictions in the archives/public records laws concerning destruction of records by requiring any agency in receipt of a request for FOI access to identify and preserve all relevant records until a final decision on the request is made. In addition, it provides a minor exception to the requirement to preserve the integrity of records, by requiring agencies to correct, annotate or update records where a member of the public shows that the information in them is incorrect. In most cases, this amendment will be achieved without deleting data from the record, but in some rarer cases material may be required to be erased.263

Commonwealth 1.151 The Archives Act was drafted so as to dovetail with the Commonwealth FOI Act, and its external review function in relation to decisions concerning access is carried out by the Commonwealth AAT. Major differences between the two avenues of access are that charges

are significantly lower under the Archives Act and the exemptions are generally narrower in scope. This reflects the fact that the records to which access is available under the Archives Act have been judged to be in some way historically significant and that older records are, in general, less sensitive. [page 64] The Archives Act now provides for rights of access to documents that are over 20 years old,264 while the Commonwealth FOI Act provides for access to more recent documents. Documents created before 1 December 1977 were originally not accessible under the Commonwealth FOI Act unless they contained an applicant’s personal or business information or were necessary to help applicants understand documents to which they had been granted access.265 However, older documents are now generally available under both the FOI Act and the Archives Act.

NSW 1.152 Like the Archives Act, the States Records Act provides for specific rights of access that are less expensive and restrictive than those available under FOI legislation. However, the position in NSW differs in that the two regimes are not specifically coordinated, and only the GIPA Act provides for clearly enforceable rights of access. It is possible to use the GIPA Act to apply for access to any document that is not subject to an open access order under the State Records Act, irrespective of its age.

Victoria 1.153 The Public Records Act provides for specific rights of access that are less expensive and restrictive than those available under FOI legislation. As in NSW, the Victorian FOI and public record regimes are not specifically coordinated with each other and only the FOI law

provides for clearly enforceable rights of access. The Victorian FOI Act still contains a ‘prior documents’ exception, so it cannot be used to apply for access to documents that were created before 5 July 1978, other than documents that relate to an applicant’s personal affairs. This limits the extent to which the Victorian FOI Act can be used as an alternative mechanism for access to older documents that are not subject to open access. However, more than 20 years have elapsed since the Victorian FOI Act came into operation, so there is no longer any gap in the coverage of the operation of the two regimes.266 [page 65]

Information privacy and public records 1.154 The Public Records Acts apply to all records in the possession of public sector bodies, including records that contain personal information. Bodies subject to public records legislation are generally bound also by the equivalent public sector information privacy laws and, in the case of NSW and Victoria (as well as the Australian Capital Territory), also by the relevant health records laws. Public records laws require the retention of public records and therefore make possible the exercise of information privacy rights. Their requirements to preserve the integrity of records take precedence over obligations to comply with privacy principles that require the deletion of material that is no longer in use, but not those that require the amendment of personal information that is incorrect. Public records laws may detract from privacy to the extent that they allow for the disclosure of personal information. The Archives Act contains a specific privacy exemption provision that is similar to the equivalent provision in the Commonwealth FOI Act, except that it refers to personal affairs rather than personal information: see 6.127. The other public records laws do not contain specific exemption provisions, although the issue of privacy is relevant to the decision as to

whether or not to open documents to public access.

Commonwealth 1.155 Personal records in the custody of the National Archives are subject to the operation of the Privacy Act, except where they are subject to arrangements with a person other than a Commonwealth institution providing for the extent to which the Archives or other persons are to have access to them.267 For the purposes of the Privacy Act, the agency that placed such records in that custody (or where it no longer exists, the agency with the most closely related functions) is to be regarded as their record-keeper.268

NSW 1.156 Personal records in the possession of the State Records Office are subject to the operation of the PPIP Act, except to the extent that they are ‘contained in a publicly available publication’.269 For the purposes of the PPIP Act, a public sector agency is regarded as holding information if the [page 66] information is ‘contained in a state record in respect of which the agency is responsible under the State Records Act’.270 The PPIP Act provides that agencies are not required to comply with the Information Privacy Principles relating to collection, openness, access, and limitations of use and disclosure contained, if noncompliance is permitted (or is necessarily implied or reasonably contemplated) under the State Records Act.271 However, the application of this exception in respect of the amendment of personal information under s 15 is overridden by s 15(4), which states that the requirement concerning amendment of records in s 15 and any equivalent provision of a privacy code of practice apply to public sector

agencies despite the State Records Act.272 To the extent that a code of practice relates to personal information contained in a state record that is more than 30 years old, it must be consistent with any relevant guidelines issued under s 52 of the State Records Act.273 1.157 The HRIP Act also contains a large number of provisions that make specific reference to the State Records Act. The definition of personal information in it excludes ‘information about an individual that is contained in a state record under the control of the State Records Authority that is available for public inspection in accordance with the State Records Act 1998’.274 However, for the purposes of the HRIP Act, information is treated as being held by a public sector agency if it is contained in a state record in respect of which the agency is responsible under the State Records Act.275 Several of the Health Privacy Principles (HPPs) are also subject to exemptions where non-compliance is permitted (or is necessarily implied or reasonably contemplated) under the State Records Act. They are HPPs 4 (individual to be made aware of certain matters), 5 (retention and security), 6 (information about information held), 7 (access), 11 (limits [page 67] on disclosure) and 15 (linkages). However, provisions in the HRIP Act or any health privacy code concerning amendment of records apply, despite s 21 of the State Records Act.276 The interrelationship between the State Records Act and the right to amendment in Sch 1, HPP 8 of the HRIP Act was considered by the ADT in TB v South Eastern Sydney Illawarra Area Health Service [2011] NSWADT 165, in the context of a decision by the respondent agency refusing to destroy an Aged Care Services Emergency Team form that included details of three of a woman’s children, thereby incorrectly

implying that she consented to the respondent contacting them in relation to her future health care. In the ADT’s view, this record was of an administrative nature and was not prohibited from being destroyed by cl 4 of Sch 1. The ADT also commented that HPP 8 was a beneficial provision that should be construed for the benefit of information subjects, and any conflicting internal policies could not override the legislation. A health privacy code of practice which provides for the protection of health information contained in a record that is more than 30 years old must be consistent with any relevant guidelines issued under s 52 of the State Records Act.277

Victoria 1.158 Both the Privacy and Data Protection Act and the Health Records Act exclude from their operation ‘a public record under the control of the Keeper of Public Records that is available for public inspection in accordance with the Public Records Act’.278 They also exclude from the definition of ‘public register’ documents open to inspection by members of the public under the Public Records Act.279 1.159 Both Acts provide that provisions contained in, or made under, them are of no force or effect to the extent of any inconsistency with provisions made in or under any other Act.280 This suggests that the requirements in Information Privacy Principle (IPP) 4.2 and Health [page 68] Privacy Principle (HPP) 4.5281 to take reasonable steps to destroy or permanently de-identify personal information that is no longer required for any purpose must be read having regard to the requirement of the Public Records Act, that records should be destroyed only with the authority of the Keeper of Public Records.282 The limitation applies to de-identification as well as destruction, because the former involves

partial destruction of the record. 1.160 The interrelationship between the former Information Privacy Act and the Public Records Act (and also the Charter of Human Right and Responsibilities Act 2006 (Vic)) was considered by the VCAT in Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 in the context of the retention of images taken at a protest. The VCAT took as its starting point that s 19 of the Public Records Act would prevail over IPP 4.2 if there was any inconsistency between them.283 The former makes it unlawful to dispose of or destroy public records otherwise than in accordance with a standard established under s 12, while the latter requires personal information to be destroyed or deidentified if it is no longer needed for any purpose. The VCAT concluded that the standards applicable under s 12 of the Public Records Act required retention of the images for at least seven years, while the ordinary meaning of IPP 4.2 was that personal information had to be destroyed or permanently de-identified only if it was no longer useful or required for a purpose contemplated by IPP 2.1. It found in this case that the purposes for which the images had been retained were consistent with their purpose and there was, accordingly, no requirement to dispose of them and no conflict with the requirements in the Public Records Act. In arriving at this finding, the VCAT considered the operation of the Victorian Charter of Human Rights and Responsibilities Act and concluded that the ordinary meaning of IPP 4.2 was not inconsistent with the applicant’s charter rights.284 1.161 In the case of the Health Records Act, HPP 4.2 precludes a health service provider from deleting health information relating to an [page 69] individual, even if it is later found or claimed to be inaccurate, except where the deletion is:

• permitted, authorised or required by the regulations or any other law; or • not contrary to the regulations or any other law and occurs either after an individual turns 25 years of age (in the case of health information collected while the individual was a child) or more than seven years after the last occasion on which a health service was provided to the individual by the provider, whichever is the later.

Commentary 1.162 The overlaps and tensions between FOI, information privacy and public records regimes, and the fact that they have strong common links, suggests that there may be logic in providing for some degree of integration between FOI, information privacy and public records. However, the only example of full integration of all three regimes is found in the Northern Territory, which integrates them in a single Act administered by the Northern Territory Information Commissioner. 1.163 The approach of combining all three Commonwealth Acts was considered and rejected in the context of the Commonwealth in the Open Government Report.285 The review found that, despite their many common aspects, each regime had a distinct purpose which was understood by the bureaucracy and, to a lesser extent, by the general public. It therefore concluded that there was insufficient benefit in the proposal to justify disturbing the current legislative framework and that the extension of the Privacy Act to the private sector detracted from the appeal of a single act. The review also considered and rejected the alternative option of transferring the provisions relating to the access and amendment of personal records from the Commonwealth FOI Act to the Privacy Act.286 In arriving at this conclusion, it took into account the fact that many requests for access to personal records also sought other information and the fact that a requirement to deal with access and amendment issues would divert the Privacy Commissioner’s resources to the detriment of the other Information Privacy Principles. It also noted

arguments to the [page 70] effect that access to, and amendment of, personal information were as much matters of government accountability as of privacy.287 The Commonwealth Government subsequently chose to combine the regulation of FOI and privacy within the new OAIC, while retaining separate FOI and Privacy Commissioners who both report to the Australian Information Commissioner. As discussed above, it has since announced its intention to abolish the positions of Information Commissioner and FOI Commissioner, and to transfer the Privacy Commissioner to the Australian Human Rights Commission. The arguments for the OAIC structure include the advantages of shared expertise and its potential to reduce institutional conflict, the potential to reduce the incidence of wrongful uses of privacy claims to resist disclosures of information and the monetary advantages of avoiding unnecessary duplications of functions.288 In other words, bringing the two regimes together served ‘to enhance oversight and allow for consistent information policy across government’.289 While public records continued to be regulated by the National Archives, ‘[t]he Information Commissioner, as the head of the OAIC, has an additional discrete function which goes beyond FOI and privacy to giving strategic advice to the Australian Government on information management generally’.290 A feature of the OAIC regime is the requirement for the Australian Information Commissioner to report to the minister responsible for FOI and privacy (currently the Attorney-General) on matters relating to Australian Government information management policy and practice, including freedom of information and privacy. The Commissioner is a member of the Steering Committee implementing the agreed recommendations291 of the Government 2.0 Taskforce’s report concerning

[page 71] use of technology to encourage a more open and transparent form of government.292 Under this model the Archives Act remains separate but is administered by the minister responsible for FOI and privacy. The interrelationship between the National Archives and the OAIC was described in the following terms: ‘The Archives has the ultimate responsibility for ensuring government accountability through good information management …’, while the Australian Information Commissioner’s role is limited to reporting to the minister about government policy and practice in relation to the handling of information held by government agencies.293 Early experience bore out ‘the wisdom of establishing an integrated scheme for information management and policy’,294 but highlighted a need to ensure that both privacy and FOI received equal protection and championship in a context where workloads are increasing dramatically within tight budgetary constraints.295 The proposal to abolish the OAIC has been justified on budgetary grounds. 1.164 NSW differs in that it now has a combined Information and Privacy Commission headed by an Information Commissioner and also includes within it a part-time Privacy Commissioner. The commission is responsible for the GIPA Act, the PPIP Act and the HRIP Act, but does not have any responsibilities in relation to public records or broader information policy-making. 1.165 Victoria maintains complete separation, with separate regulators for the Victorian FOI Act, the Privacy and Data Protection Act, the Health Records Act and the Public Records Act.

BROADER CONTEXTS

Modern public management practices 1.166 This book is concerned primarily with the regulation of information in the possession of the public sector. It is, therefore, important to consider at the outset the defining characteristics of current public management practice. The prevailing ethos continues to be [page 72] ‘focussed on outputs rather than processes, … anti-regulatory in spirit, and … particularly interested in the opportunities of market testing and, if possible outsourcing many traditional functions of government’.296 Public administrators are required ‘to “steer rather than row” and to be the entrepreneurs of a new, leaner and increasingly privatised government’.297 Other manifestations of this phenomenon include a policy direction that favours deregulation and responsive regulation, an increased proliferation of government corporations of various types, multiple forms and mechanisms for delivery of government services, the sale and privatisation of commercial operations within the government and extensive reliance on the use of contracts and outsourcing.298 There is also a continuing emphasis on the use of market-based mechanisms and the exposure of public services to competition.299 Key aspects, such as competitive tendering, provide the means by which the market forces and contestability (that is, the introduction of new entrants into markets previously monopolised by single providers) have been introduced into the delivery of government services. The rationale for this emphasis on economics is that governments need to be ever more effective and efficient due to a wide range of social, economic and technological pressures. In particular, budgetary imperatives have intensified the scrutiny of government expenditure, while at the same time the community is demanding a more responsive delivery of services and greater accountability for expenditure of taxpayers’ money. The consequence is that citizens are now increasingly

conceptualised as consumers and traditional administrative law mechanisms have been replaced by private law remedies. 1.167 The nature and shape of government has important consequences for the scope of laws that are the subject of this book. Privatisation has had the effect of narrowing the range of bodies that fall within the [page 73] jurisdiction of laws that regulate the public sector. Those laws generally exclude fully privatised bodies from their operation and are complex in their scope due to the large number, diversity and complexity of the structures used in the creation of bodies that carry out commercialised governmental activities under distinct, independent corporate structures. The extent to which GBEs and other such bodies are subject to the various government information laws varies considerably and raises complex issues concerning the boundaries between the public and private sectors. Furthermore, the administrative separation of the role of purchaser and provider of government services and between policy implementation and program delivery means that government services are now increasingly delivered by private sector bodies which may fall outside the ambit of government information laws. In addition, an increasing proportion of the information in the possession of government agencies is potentially subject to claims that it should be withheld from access on the grounds of commercial confidentiality.300 Commercial in confidence claims are not confined to financial data but also extend to information concerning the standards of service of delivery, such as incident data (including information about suicides) in privatised prisons. As described by Juillet and Paquet, the resulting organisational pluralism and boundary-shifting have had ‘the consequence of

multiplying the sites of socially and politically relevant information and situating many of them outside the traditional reach of the state’.301 In the absence of design features that address them, these features have the potential to exclude from public access a significant proportion of the documents that shed light on government operations.302 In the case of public records laws, they reduce the range of information that is subject to good record-keeping practices and that will be available for future research. The rationale for information privacy laws is arguably less dependent on, or affected by, the public/private distinction, although that is not to deny that the adequate protection of privacy is integral to the [page 74] relationships between governments and their citizens. However, the fact that governments are able to make use of coercive powers to acquire personal information and to require its provision as a precondition for the receipt of government benefits arguably requires that there should be rigorous protection of that personal information. 1.168 Two other aspects of the new public management philosophy that impact on the operation of government information laws are the continuing emphasis on the pruning of ‘non-essential’ spending and the collection of non-tax revenues.303 The former has impacted on the level of resources that have been provided to ensure effective compliance with the government information laws (for example, the extent of the resources that are made available to staff oversight bodies, to fill FOI and privacy officer positions and to provide monitoring and training). The latter has resulted in an increased commodification of government information (so that it is made available for substantial fees rather than via freedom of information) and in increases in the fees charged, in particular, for FOI access. That approach contrasts with that taken in the United States, where government information is not subject to

copyright and is viewed as a national resource that should be made available freely in the interests of democracy.304 The United States approach is based on the view that ‘the power to set a price on information is the power to deny access’.305 Maintaining a diversity of channels is not only economically beneficial but also serves a valuable role in protecting against censorship and manipulation of public information for political purposes.306 1.169 The new levels of interactivity and increased end-user focus associated with Web 2.0 has led to Gov 2.0, an approach to government information management that, to varying extents, involves the implementation of new measures to promote increased public participation in, and engagement with, government agencies, [page 75] and increased emphasis on making government information more readily available for distribution, use and re-use by members of the community.307 This has led to a number of innovative proactive disclosure initiatives occurring outside of FOI regimes. A good example has been the development of the United States data.gov initiative, which is designed to facilitate access to and searches of government datasets (for example, by providing searchable catalogues of information and a range of applications, including widgets, gadgets, tools and RSS feeds),308 thereby expanding the creative use of government information beyond the walls of government, and encouraging innovation.309 In 2010 the Commonwealth Government implemented a key recommendation of the Gov 2.0 taskforce,310 to make a declaration of open government that emphasised the role of Web 2.0 tools in achieving a more consultative, participatory and transparent government and fully realising the social and economic value of public sector information as a national resource.311 It also established a Gov 2.0 steering group which, inter alia, established open licensing as the default whole-of-government copyright arrangement, provided advice relating to the publication of

government information in a reusable form and established the data.gov.au website.312 A similar approach is reflected in the NSW Government ICT Strategy 2012313and accompanying Premier’s Memorandum on Open Government, which has committed to increasing online access and communications.314 The Commonwealth Government also announced its intention to join the Open Government Partnership,315 ‘a multilateral initiative that aims to secure concrete commitments from governments to promote [page 76] transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance’.316

Technological developments 1.170 The ability ‘to represent all informational artefacts across the full spectrum of recording, transmitting, computing, and displaying activities using a single common universal form, a string of (binary) digits’ and the ever-increasing processing power of computers have revolutionised many aspects of modern life, including the way in which information is created and handled, how it is used and the ways in which individuals interact with each other.317 1.171 Electronic communication is now the norm in a ‘Web 2.0’ environment characterised by new levels of interconnectivity and interactivity, including extensive use of social media and the use of ‘big data analytics’ to analyse large quantities of data so as to take advantage of patterns and correlations to improve service provision and outcomes. Government information exists in multiple locations, including ‘desktop and portable computer hard-drives, USB pins, smartphones, central government sites such as govdex and data.gov, on social networking sites such as Facebook or remote locations in the Cloud,’ and in the non-traditional forms, including ‘metadata, email

exchanges and twitter messages’.318 As outlined above, the Web 2.0 environment has provided the impetus for Gov 2.0 developments, including a new emphasis on open access to public sector information. However, those developments pose continuing record-keeping challenges, including risks to security and privacy more broadly, and risks to transparency arising from the transient nature of many forms of digital communication. Cloud computing, in particular, raises complex issues to the extent that personal data is stored on remote servers made accessible by the internet, rather than on an organisation’s own computers, thereby reducing the organisation’s ability to maintain full control over that data.319 [page 77] 1.172 More generally, the privacy issues that first arose with the phenomenon of convergence and the subsequent development of technologies that have created new sources of personal information (for example, CCTV,320 radio frequency identification products (RFIDs),321 face recognition software,322 automatic number plate recognition,323 mobile communications technologies,324 digital rights management technologies325 and drones)326 still exist and have been worsened by developments that have further improved the efficiency of information collection and processing. The latter include improvements in the efficiency of face recognition technology327 and technologies based on geolocation,328 which [page 78] have together combined to create more pervasive forms of surveillance that have substantially undermined privacy in public places,329 creating the same effect as perpetual, around-the-clock surveillance.330 They also

include e-health developments, including the personally controlled electronic health records that are increasingly removing personal health information from the safe quarantine of individual health practitioners’ filing systems.331 The coupling of RFID technology with existing developments in ubiquitous information communication networks and intelligent technologies also heralds a new development commonly described as the ‘Internet of Things,’ in which common gadgets equipped with some or all of the five senses (such as sight and smell) combined with computing and communication capabilities will be able to communicate with people and between themselves: ‘from anytime, anyplace connectivity for anyone, we will now have connectivity for anything’.332 A related development is ‘ubiquitous computing’, which involves the development of ‘intelligent interfaces … supported by computing and networking technology embedded in all kinds of objects in the environment and that are sensitive and responsive to the presence of different individuals in seamless and unobtrusive way’. This involves a changed focus in which computing will increasingly ‘move to the background, weave itself into the fabric of everyday living spaces and disappear from the foreground, projecting the human user into it’.333 Emerging capabilities of this new technology include applications that enable mobile phones to display information about tagged objects, and ‘to collaborate with distant servers to identify untagged people, places, and things by means of machine vision’.334 [page 79] 1.173 At the same time, the trend toward big data analytics has fuelled an already information-hungry surveillance culture.335 This process operates on the basis of the belief that detailed information provides ‘omniscience, and with it the ability to predict preferences, behaviours and needs, and the opportunity to shape public (or private) policies accordingly’:336

The need to judge others out of context is the logical product of rational self-interest when it occurs in markets, and of rationalism, more broadly defined, when the agent is the state. Such a regime literally cannot operate without a constant supply of new information …337

However, the use of big data analytics also facilitates a strategy of ‘preemptive decision-making’ that ‘renders individuals unable to observe, understand, participate in, or respond to information gathered or assumptions made about them’.338 This aspect is open to criticism on the basis that it is antithetical to both privacy and due process values.339 1.174 One of the consequences of these developments is that it is now more easily possible for governments to share information, both within and between themselves, with private sector organisations and with the persons who receive their services. As a result, there has been growing pressure to redesign such interactions in ways that make crossorganisational boundaries increasingly redundant.340 This process, which is referred to in the United Kingdom as ‘joined-up government’, serves a multiplicity of goals: it is intended to eliminate the potential of conflicting policy formulation, make better use of scarce resources, create synergies through the bringing together of key stakeholders and offer citizens a more seamless access to sets of related services.341 However, it often overlooks the complexity of the issues raised by changes in service delivery [page 80] models,342 including the issues of privacy343 and security (especially the security of keys in the context of public key infrastructure).344 1.175 Another important consequence of the increasing trend to communicate electronically is the threat that it poses to transparency. A discussion paper issued by the NSW State Records Office identified three key threats to the preservation of digital records: loss of authenticity due to inadequate protection and control; becoming unreadable due to changes in software and hardware; and physical

deterioration of the storage media.345 A report of a Commonwealth audit likewise noted these issues and highlighted the challenges for agencies ‘in achieving robust records management arrangements in today’s digital environment’.346 These issues make it important to ensure the implementation of appropriate record-keeping practices. As noted by the ALRC, in the absence of adequate planning and management of electronic record-keeping systems, ‘there can be no guarantee that records, whatever their long term value, will be systematically created and maintained to a standard appropriate to their future use, including accessibility to future generations’.347 1.176 In the case of the Commonwealth, the Digital Transition Policy has provided an umbrella for a range of strategies to improve recordkeeping practices within government agencies. These include a Digital Continuity Plan348 and the endorsement of international standard ISO 16175 Principles and functional requirements for records in electronic [page 81] environments as a benchmark for the selection of records management systems.349 Similar measures have also been implemented at the state level. In NSW government agencies are required to comply with standards on records management issued in 2015.350 In Victoria, the Public Records Office implemented a comprehensive Recordkeeping Standards Project351 in response to recommendations in a report by the Victorian Auditor-General’s Office.352

The post-September 11 national security environment 1.177 It is important to consider the context of a national security environment that has existed since the terrorist attacks on the World Trade Center on 11 September 2001,353 the numerous other acts of terrorism that have followed them354 and the implications of the

plethora of security laws that continue to affect individual rights of privacy in different ways, while diminishing the transparency of security organisations. 1.178 The Commonwealth Parliament enacted some 54 pieces of anti-terrorism legislation in the decade following September 11.355 Key features of these laws included provisions for new offences relating to the commission of terrorist acts, a scheme for proscription of terrorist organisations, offences relating to the financing of terrorism, various speech offences, new and augmented powers for police and security organisations, control order and preventative detention regimes, [page 82] increased surveillance powers for police and security organisations, new procedures for hearings related to terrorism offences and new border and transport security measures. As is the case with equivalent measures implemented elsewhere in response to terrorism, these are notable for their diminution of traditional civil liberties and their preventative focus, which includes a wider use of intelligence gathering. 1.179 Australia’s national security regimes have been the subject of a number of different government reviews, including the Clarke Inquiry into the case of Dr Mohamed Haneef,356 the 2006 inquiry by the Parliamentary Joint Committee on Intelligence and Security,357 the 2007 inquiry by the Parliamentary Joint Committee on Intelligence and Security358 and the ALRC’s 2006 Sedition Law Review.359 The National Security Amendment Act 2010 (Cth) enacted some of the reforms advocated in the review reports but did not address many controversial aspects of the counter-terrorism regime such as the control order regime, the process for proscribing terrorist organisations and the terrorist organisation offences.360 In 2013 two further significant reviews were completed by the Council of Australian Governments (COAG) and the Independent

National Security Legislation Monitor. These both recommended further reforms, although they differed in relation to some of their recommendations. The Legal and Constitutional Affairs References Committee was given a reference to consider comprehensive revision of the Telecommunications (Interception and Access) Act 1979 (Cth) and published a report in March 2015, which identified a number of deficiencies in the existing regime. A further significant development related to mandatory data retention requirements for the purposes of possible interception in accordance with the procedures in the Act. In June 2013 the Parliamentary Joint [page 83] Committee on Intelligence and Security (PJCIS) handed down its report entitled ‘Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation’. The report noted differing views among committee members and made a number of recommendations about what a mandatory data scheme should include if there was a decision made to implement it. The government made a decision to implement a metadata retention regime and referred a Bill to the PJCIS for further consideration. The committee’s recommendations were implemented in the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), which also included further amendments relating to a journalist information warrants regime, which were intended to address concerns about the protection of confidential journalistic sources. 1.180 An important aspect of the ongoing ‘war on terror’ agenda is that it has normalised and legitimised mass targeted surveillance, not only within the national security apparatus but also deep within broader government and corporate and social structures.361 The extent of national security surveillance that is in fact possible and taking place has been made clear by the disclosures of United States National

Security Agency whistleblower Edward Snowden. These indicate massive ongoing surveillance activities undertaken in the context of a multilateral agreement for cooperation in signals intelligence between the United Kingdom, the United States, Canada, Australia, and New Zealand. Those activities include gathering metadata (such as phone and internet browser records) and the content of phone and internet communications, and the use of sophisticated software to map individuals’ relationships with others.362 They also include the use of a variety of methods to crack or circumvent commonplace internet encryption used to protect electronic communications and data ‘ranging from the insertion of “back doors” in popular tech products and services, to supercomputers, secret court orders and the manipulation of international processes for setting encryption standards’.363 At the same time, there are many laws (including laws that have been strengthened since September 11) which potentially criminalise the activities of whistleblowers who might be able to shed light on abuses of these powers.364 [page 84] Developments of this type are not unique to Australia, and it has been said in the context of a comparative study that ‘developments in telecommunications and the rise of digital technology have dramatically increased the capacity both of governments and international organizations to locate individuals, intercept their communications and target them’, putting the protection of personal privacy under significant pressure ‘in the name of fighting terrorism’.365 A key difference in Australia, however, is the lack of any constitutional protection of human rights.366 1.181 The new environment has also impacted on transparency via the inclusion of national security exemptions in the Victorian FOI Act and the GIPA Act and increases in the scope of national security exclusions from the Commonwealth FOI Act.

1.182 In considering the impact of these developments it is important to bear in mind the need to ensure that they are not allowed to undermine the democratic freedoms that we are seeking to protect. This is a matter of balance and proportionality and requires that the case for departing from accepted democratic norms must be fully justified.367 A factor that differentiates Australia from other western nations is the fact that it lacks any Bill of Rights, and, therefore, any mechanism for ensuring that civil liberties are not unacceptably undermined by national security laws. Arguably, therefore, the need for transparency is all the greater. To the extent that bodies such as ASIO have extensive powers, it is important to ensure that they are exercised appropriately and that measures introduced for anti-terrorist reasons are not used to harass political opponents or others whose views are regarded as politically unacceptable. Another reason why transparency is important is that it may assist, rather than detract from, anti-terrorism measures. As has been noted in the Canadian context, access to information can play a role in increasing the capacity of a community to ‘preserve the order upon which its liberties depend’ and thereby assist in building a state that is ‘resilient as well as respectful of citizen rights’.368

1. 2. 3.

4.

5. 6. 7.

G E (Tony) Fitzgerald (Chairman), Report of the Commission of Inquiry Pursuant to Orders in Council, Brisbane, 1989, p 126. ALRC, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 (the Open Government Report), 1995, 2.3. N Nevitte, ‘Citizens’ Values, Information and Democratic Life’, Report 2 — Access to Information Review Task Force, Ottawa, March 2001 accessed at: . See generally S Lamble, ‘Freedom of Information, a Finnish Clergyman’s Gift to Democracy’ (2002) 97 Freedom of Information Review 2; J Manninen, ‘Anders Chydenius and the Origins of World’s First Freedom of Information Act’ in J Manninen (ed), The World’s First Freedom of Information Act: Anders Chydenius’ Legacy Today, Anders Chydenius Foundation, 2006, (accessed May 2015). 5 USC s 552 (2000). There is now national legislation in many other such countries, including Canada, New Zealand, Ireland and the United Kingdom. For a useful overview and explanation of that tradition, see E C Campbell, ‘Public Access

8. 9. 10. 11. 12.

13.

14. 15. 16.

17.

18. 19. 20.

21. 22. 23. 24. 25. 26. 27. 28.

to Government Documents’ (1967) 41 Australian Law Journal 431. See also J Spigelman, Secrecy, Political Censorship in Australia, Angus & Robertson, Sydney, 1972. See, for example, Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; 17 ALR 575. R v Metropolitan Fair Rents Board; Ex parte Canestra [1961] VR 89; Hamblin v Duffy (No 2) (1981) 37 ALR 297. FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57. Public Service Board of New South Wales v Osmond (1985) 159 CLR 656 at 663–4. Sankey v Whitlam (1978) 142 CLR 1 at 38–9; 21 ALR 505; [1978] HCA 43. For a discussion about the interrelationships between FOI and public interest immunity, see A Cossins, ‘Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law’ (1995) 23 Federal Law Review 226. Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 52; 32 ALR 485. See also Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86. Commonwealth Administrative Review Committee Report, Parliamentary Paper 144/1971. J Griffiths, ‘Australian Administrative Law: Institutions, Reforms and Impact’ (1985) 63 Public Administration 445 at 446. There is currently no common law right to require the provision of reasons for administrative decisions: see Public Service Board v Osmond (1986) 159 CLR 656; 63 ALR 559. Attorney-General’s Department, Report of Inter-Departmental Committee, Proposed Freedom of Information Legislation, Australian Government Publishing Service, Canberra, 1974; Attorney-General’s Department, Report of Inter-Departmental Committee, Policy Proposals for Freedom of Information Legislation, Australian Government Publishing Service, Canberra, 1976; Royal Commission on Australian Government Administration, Report, Australian Government Publishing Service, Canberra, 1976. For a useful overview of these processes, see A Missen, ‘Freedom of Information: the Australian Experience’ (2002) 100 Freedom of Information Review 42. See A Rose, ‘Freedom of Information under Review’ (1996) 80 Canberra Bulletin of Public Administration 4. A Hawke, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010, Attoney-General’s Department, 2013, (accessed May 2015). These functions were exercised principally by the FOI Commissioner. See Freedom of Information Amendment (New Arrangements) Bill 2015. OAIC, OAIC to remain operational until further notice (8 December 2014), , go to News and events, then Statements (accessed May 2015). Ombudsman Act 1974 (NSW). Review of New South Wales Government Administration, Directions for Change, Interim Report, NSW Government Printer, Sydney, 1977. Review of New South Wales Government Administration, Unfinished Agenda, NSW Government Printer, Sydney, 1982. The Hon Nathan Rees, Minister’s ‘Agreed to in principle’ speech, Government Information (Public Access) Bill, 17 June 2009, p 1. Ombudsman Act 1973 (Vic).

29. The Administrative Appeals Tribunal Act 1984 (Vic) was subsequently repealed and replaced by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). 30. Administrative Law Act 1978 (Vic). 31. See M Paterson, ‘Victoria’s New FOI Bill: Some Long Overdue Reforms but Still Room for Improvement’ (1999) 84 Freedom of Information Review 70. 32. Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978, Australian Government Publishing Service, Canberra, 1979, 3.3. See also V Morabito, ‘Public Access to the Records of the Australian Security Intelligence Organisation under the Archives Act 1983 (Cth)’ (1995) 17 Sydney Law Review 406 at 408–12; A Cossins, ‘Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law’ (1995) 23 Federal Law Review 226. 33. J Goldring, ‘Accountability of Commonwealth Statutory Authorities and ‘Responsible Government’ (1980) 11 Federal Law Review 353 at 361–8. 34. The federal government also requires the support of the Senate on crucial issues such as supply, to keep itself in office. It is, therefore, in a limited sense, also responsible to the Senate. See, for example, C Howard and C Saunders, ‘The Blocking of the Budget and Dismissal of the Government’ in G Evans (ed) Labor and the Constitution, 1972–1975: Essays and Commentaries on the Constitutional Controversies of the Whitlam Years, Heinemann Educational Australia, Richmond (Vic), 1977, pp 258–70. 35. M Gleeson, ‘The Shape of Representative Democracy’ (2001) 27 Monash University Law Review 1. 36. Citing D Kinley, ‘Governmental Accountability in Australia and the United Kingdom: A Conceptual Analysis of the Role of Non-Parliamentary Institutions and Devices’ (1995) 18 University of New South Wales Law Journal 409 at 411. 37. Citing J Mill, Considerations on Representative Government, 1861, p 104. 38. Citing Queensland, Electoral and Administrative Review Commission, Report on Review of Parliamentary Committees (October 1992), vol 1, 2.23. 39. Other mechanisms include parliamentary questions, inquiries conducted by parliamentary committees and such further information as is obtainable via offices which report directly to the parliament, including Auditors-General and Ombudsmen. 40. See G Carney, ‘Egan v Willis and Egan v Chadwick: The Triumph of Responsible Government’ in G Winterton (ed), State Constitutional Landmarks, Federation Press, Sydney, 2006. 41. Another recent incident involved a Victorian minister’s refusal to allow a parliamentary staffer to attend before a parliamentary committee which was investigating allegations of a sham consultation in relation to the development of the Windsor Hotel. See Legislative Council Standing Committee on Finance and Public Administration, 11th Report to the Legislative Council Inquiry into Victorian Government Decision Making, Consultation and Approval Processes, Second Interim Report, August 2010; W Tunnecliffe, ‘A Case of Contempt? The Legislative Council of Victoria and One of its Committees vs A Certain Government Media Advisor and the Attorney-General’, paper presented at 41st Conference of Presiding Officers and Clerks Darwin, Northern Territory, July 2010, discussed at (accessed May 2015). 42. See generally D Oliver, ‘Freedom of Information and Ministerial Accountability’ (1998)

43. 44. 45.

46.

47.

48. 49.

50. 51.

52. 53.

54.

55. 56. 57.

Public Law 171; R Snell and J Upcher, ‘Freedom of Information and Parliament: A Limited Accountability Tool for a Key Constituency?’ (2002) 100 Freedom of Information Review 35. M Simms, ‘Models of Accountability and Concepts of Australian Government’ (1999) 58 Australian Journal of Public Administration 34 at 34. See generally R Mulgan, ‘The Processes of Public Accountability’ (1997) 56 Australian Journal of Public Administration 25. For a discussion of the role of Auditors-General, see R Mulgan, ‘Auditors-General: Cuckoos in the Managerial Nest?’ (2001) 60 Australian Journal of Public Administration 24. See C Elliott, ‘Balancing Risk Management with Accountability: The Role and Impact of the Legislature and Parliamentary Committees in the Process of Public Accountability’ (1997) 49 Admin Review 4; R Gregory and M Painter, ‘Parliamentary Select Committees and Public Management Reform in Australasia: New Games or Variations on an Old Theme’ (2003) 106 Canberra Bulletin of Public Administration 63; P Nagle, ‘Regulatory Reform Management and Scrutiny of Legislation: Accountability and Transparency in New South Wales’ (2000) 81 Parliamentarian 365. Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978, Australian Government Publishing Service, Canberra, 1979, 4.24; H Evans, ‘Parliament: An Unreformable Institution?’, Senate Occasional Lecture, 13 July 1992, p 4, cited in L McDonald, ‘The Denizens of Democracy: The High Court and the “Free Speech” Cases’ (1994) 5 Public Law Review 160 at 173. E Thompson, ‘The Washminster Mutation’ in P Weller and D Jaensch (eds), Responsible Government in Australia, Drummond Publishing, Richmond (Vic), 1980, p 38. L McDonald, ‘The Denizens of Democracy: The High Court and the “Free Speech” Cases’ (1994) 5 Public Law Review 160 at 162. See also H Wright, ‘Sovereignty and the People — the New Constitutional Grundnorm?’ (1998) 26 Federal Law Review 165. R Snell and J Upcher, ‘Freedom of Information and Parliament: A Limited Accountability Tool for a Key Constituency?’ (2002) 100 Freedom of Information Review 35. See generally P Bayne and K Rubenstein, ‘Freedom of Information and Democracy: A Return to the Basics?’ (1994) 1 Australian Journal of Administrative Law 107; G Lindell, ‘Expansion or Contraction? Some Reflections about the Recent Judicial Developments on Representative Democracy’ (1998) 20 Adelaide Law Review 111. (1992) 177 CLR 106 at 137. Open Government Report, 2.4. For an argument to the effect that the Constitution should be amended to protect FOI, see P Chadwick, ‘FoI and the Constitution’ (1995) 56 Freedom of Information Review 23. See Administrative Review Council/ALRC, Freedom of Information, Discussion Paper 59, ALRC, Canberra, 1995, 2.4. See also R Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ (2000) 28 Federal Law Review 41. Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106 at 231 per McHugh J; 108 ALR 577. Freedom of Information Act 1982 (Cth) s 3(2). G E (Tony) Fitzgerald (Chairman), Report of the Commission of Inquiry Pursuant to Orders in Council, Brisbane, 1989, p 126. See also J Plamenatz, Democracy and Illusion: An Examination of Certain Aspects of Modern Democratic Theory, Longman, Harlow,

58.

59. 60.

61.

62.

63. 64. 65. 66.

67.

68. 69.

70.

71. 72. 73. 74. 75.

1973, pp 178–9; Green Paper, Legislation on Public Access to Government Documents, Ontario, Canada, 1977, p 1; World Bank Institute, ‘Recommendations for an Informed Democracy’ (2003) 84 Parliamentarian 158. P Bishop, ‘Representative Democracy and the Place of Participation’ (1999) 94 Canberra Bulletin of Public Administration 12 at 16. See also T Sherman, ‘Administrative Law — The State of Play’ (1991) 66 Canberra Bulletin of Public Administration 63 at 63–8. Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at [59]. D Feldman, ‘Democracy, the Rule of Law and Judicial Review’ (1990) 19 Federal Law Review 1 at 2–4. See also M Minogue, ‘Parliamentary Democracy Today’ (1976) 21 New Zealand Law Journal 485. The Sunshine Act was enacted in 1976 and is codified at 5 USC s 552b. For details concerning its operation, see E Smith, ‘Government in the Sunshine’ in H Hammitt, D Sobel and M Zaid (eds), Litigation under the Federal Open Government Laws, EPIC Publications and Access Reports, Washington, 2002. See, for example, Local Government Act 1989 (Vic) s 89; Local Government Act 1993 (NSW) ss 9–11. See also New South Wales Department of Local Government, Options to Reform those Provisions of the Local Government Act 1993: Regulating Open Council Meetings and Public Access to Council Information, Discussion Paper, Sydney, 1996. Open Government — A Review of the Federal Freedom of Information Act 1982, ALRC Report 77 at 4.9. Freedom of Information Act 1982 (Cth) s 3(3). T Mendel, Freedom of Information: A Comparative Legal Survey, 2nd ed, UNESCO, Paris, 2008, p 5. See, for example, P Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ (2006) 58 Administrative Law Review 177; W Hins and D Voorhoof, ‘Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights’ (2007) 3 European Constitutional Law Review 114. See Gaskin v United Kingdom (1989) 12 EHRR 36; Guerra v Italy (1998) 26 EHRR 357; Claude Reyes and others v Chile Case No 12.108, Report 60/03 (Inter-American Court of Human Rights). P Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ (2006) 58 Administrative Law Review 177 at 216. For a useful overview, see M Groves, ‘Before the High Court Reviewing Reasons for Administrative Decisions: Wingfoot Australia Partners Pty Ltd v Kocak’ (2013) 35 Sydney Law Review 627. See also ARC, Practical guidelines for preparing statements of reasons (2002), (accessed May 2015). Public Service Board (NSW) v Osmond (1986) 159 CLR 656; 63 ALR 559. See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; [2013] HCA 43 at [43]. See Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 734–5; Watson v South Australia [2010] SASCFC 69. See Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13; Administrative Appeals Tribunal Act 1975 (Cth) s 28. Administrative Decisions Review Act 1997 (NSW) s 49. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 45(1). Administrative Law Act 1978 (Vic) s 8.

76. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; [2013] HCA 43 at [55]. 77. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; [2013] HCA 43 at [49]. 78. See M Miceli and J Near, ‘The Relationships among Beliefs, Organisational Position, and Whistleblowing Status: A Discriminant Analysis’ (1984) 27 Academy of Management Journal 687 at 689, cited in A Brown ‘Towards “ideal” whistleblowing legislation? Some lessons from recent Australian experience’ (2013) 2 E-Journal of International and Comparative Labour Studies 4 at 4. 79. There is further information about this legislation on the website of the Commonwealth Ombudsman at (accessed May 2015). 80. See generally, A Brown, P Latimer, J McMillan and C Wheeler, ‘Best-practice whistleblowing legislation for the public sector: the key principles’ in A Brown (ed), Whistleblowing in the Australian Public Sector: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations, ANU E-press, Canberrra, 2008; A Brown ‘Towards “ideal” whistleblowing legislation? Some lessons from recent Australian experience’ (2013) 2 E-Journal of International and Comparative Labour Studies 4. 81. See further A Barton, ‘Public sector accountability and commercial-in-confidence outsourcing contracts’ (2006) 19 Accounting, Auditing & Accountability Journal 256. 82. The 2012 Commonwealth Procurement Rules can be accessed via the website of the Department of Finance: , go to procurement, then procurement policy and guidance and then to Commonwealth Procurement Rules (accessed May 2015). 83. Government Information (Public Access) Act 2009 (NSW) s 27. See NSW IPC, Government contracts and the GIPA Act, knowledge update, 2012, (accessed May 2015). 84. See ‘Ensuring Openness and Probity in Victorian Government Contracts: A Policy Statement’, 11 October 2000. This can be accessed at . 85. See Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505; Evidence Act 1995 (Cth) ss 129– 131; Evidence Act 1995 (NSW) ss 129–131; Evidence Act 2008 (Vic) ss 129–131. 86. Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] 15 VR 22; [2006] VSCA 85 at [34]. See also R v Young (1999) 46 NSWLR 681 at 693; [1999] NSWCCA 166. 87. See Spencer v Commonwealth of Australia (2012) 206 FCR 309; [2012] FCAFC 169. 88. See Baker v Campbell (1983) 153 CLR 52; 49 ALR 385; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; Evidence Act 1995 (Cth) ss 117–126; Evidence Act 1995 (NSW) ss 117–126; Evidence Act 2008 (Vic) ss 117–126. 89. D Thampapillai, ‘Crown Copyright — the nature of the Crown and the Prerogative’ (2007) 14 ELaw Journal 283. 90. Copyright Law Review Committee, Crown Copyright, 2005, rec 1. 91. Ibid, rec 4. 92. See 17 U.S.C. § 105. 93. General Comment 16, issued 23 March 1998, paras 7 and 10, cited in L Bygrave, ‘Data Protection Pursuant to the Right to Privacy in Human Rights Treaties’ (1998) 6

94. 95. 96. 97. 98.

99. 100. 101. 102.

103. 104.

105. 106. 107.

108.

109. 110. 111. 112.

International Journal of Law and Technology 247 at 252. See P Regan, Legislating Privacy: Technology, Social Values and Public Policy, University of Carolina Press, Chapel Hill, 1995, Ch 2. C Fried, ‘Privacy’ (1968) 77 Yale Law Journal 475 at 482. E Bloustein, ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 New York University Law Review 962 at 1003. L Austin, ‘Privacy and the Question of Technology’ (2003) 22 Law and Philosophy 119 at 146. L Lustgarten and I Leigh, In from the Cold: National Security and Parliamentary Democracy, Clarendon Press, Oxford, 1994, pp 39–10. This dual aspect of respect and self-respect is a vital dimension to privacy. In a similar vein, it has been suggested that the essence of wrong that occurs through privacy invasions is lack of respect for the subject as a person: see S Benn, ‘Privacy, Freedom and Respect for Persons’ in R Pennock and J Chapman (eds), Nomos XIII: Privacy, Atherton Press, New York, 1971. J Rosen, The Unwanted Gaze: The Destruction of Privacy in America, Random House, New York 2000, p 8. H Nissenabuam, ‘Privacy as Contextual Integrity’ (2004) 79 Washington Law Review 119. K Haggerty and R Ericson, ‘The Surveillant Assemblage’ (2000) 51 British Journal of Sociology 605. H Nissenabuam, ‘Privacy as Contextual Integrity’ (2004) 79 Washington Law Review 119 at 236. C Slobogin, ‘Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity’ (2002) 27 Mississippi Law Journal 236. J Cohen, ‘Examined Lives: Informational Privacy and the Subject as Object’ (2000) 52 Stanford Law Review 1373 at 1426. M Foucault, Discipline and Punishment, translated by A Sheridan, 2nd ed, Vintage Books, 1995, pp 202–3, cited in M Grey, ‘Urban Surveillance and Panopicism’ (2003) 1 Surveillance and Society 314 at 320. J Cohen, ‘What privacy is for’ (2013) 126 Harvard Law Review 1904 at 1915. D Solove, The Digital Person: Technology and Privacy in the Information Age, New York University Press, 2004, pp 36–9. See, for example, K Crawford and J Schultz, ‘Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms’ (2014) 55 Boston College Law Review 93 at 99–101. OECD, ‘OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data’, 1980, Preface, accessed at