Freedom of information : what you need to know 9780409341294, 0409341290

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Freedom of Information What you need to know

Dr Damien J Cremean LLB (Hons), MA (Melb), PhD (Mon) Barrister-at-Law

LexisNexis Australia 2015

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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National Library of Australia Cataloguing-in-Publication entry

Author: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Cremean, Damien J. Freedom of information: what you need to know. First edition. 9780409341287 (pbk). 9780409341294 (ebk). Includes index. Australia — Freedom of Information Act 1982. Freedom of information — Australia. 342.940853

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. 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 Myriad Pro and Minion Pro. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Publisher’s Note

Part 1 and Part 2 – Commentary and Precedents The Commentary and Precedents of this book are based on the Australian Encyclopaedia of Forms & Precedents title Freedom of Information.

Part 3 – Legislation The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance of this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Part 4 – Freedom of Information Guidelines: Exemptions The Freedom of Information Guidelines: Part 5 Exemptions, are reproduced with the permission of The Office of the Australian Information Commissioner (the OAIC). The OAIC regulates the Privacy Act 1988 (Cth) (the Privacy Act) and the Freedom of Information Act 1982 (Cth) (the FOI Act). The OAIC has the power to investigate complaints about the alleged mishandling of personal information by Australian, Norfolk Island and ACT government agencies and many private sector organisations, as well as the power to investigate and review FOI processes and decisions. A complete version of the Freedom of Information Guidelines can be found on the Office of the Australian Information Commissioner website, .

Table of Cases References are to paragraph numbers

‘A’ and Department of Health and Ageing, Re [2011] AICmr 4 …. 5.111 ‘AA’ and Bureau of Meteorology [2013] AICmr 46 …. 5.32, 5.36 Accident Compensation Commission v Croom (1991) 2 VR 322 …. 5.91 ACP Magazines Ltd and IP Australia [2013] AICmr 20 …. 5.143 ‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 …. 5.118, 5.143 Aldred and Department of Foreign affairs and Trade, Re [1990] AATA 833 …. 5.25 Anderson and Australian Federal Police, Re [1986] AATA 78 …. 5.101 — v — [1986] AATA 79 …. 5.103 Anderson and Department of Special Minister of State, Re [1984] AATA 478 …. 5.39 Angel and the Department of the Arts, Heritage and the Environment, Re [1985] AATA 314 …. 5.189 Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167; BC201206288 …. 1.4.71, 1.6.54 Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 …. 5.121, 5.122 Arnold (on behalf of Australians for Animals) v Queensland (1987) 13 ALD 195; 73 ALR 607; 6 AAR 463 …. 1.4.36, 5.25 Attorney-General v Times Newspapers Ltd [1973] 3 All ER 54 …. 5.172 Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11 …. 5.134

Australian Hospital Care Pty Ltd v Duggan [1999] VSC 134 …. 5.122 Australian Wheat Board Ltd v Cole (2006) 235 ALR 307 …. 5.123 — v — (No 5) (2006) 155 FCR 30; 234 ALR 651; [2006] FCA 1234; BC200607325 …. 1.4.132 B v Office of the Official Secretary to the Governor-General [2011] AICmr 6 …. 1.1.18 B and Brisbane North Regional Health Authority, Re (1994) 1 QAR 279 …. 5.155, 5.156 ‘B’ and Department of Immigration and Citizenship [2013] AICmr 9 …. 5.143 Besser and Attorney-General’s Department [2013] AICmr 12 …. 5.85, 5.90 Binnie and Department of Agriculture and Rural Affairs (1987), Re VAR 361 …. 5.96 Boehm and Department of Industry Technology and Commerce, Re [1985] AATA 60 …. 5.95 Brygel v Victoria Police [2014] VCAT 1199 …. 1.4.121, 1.4.129 Bunting and Minister Immigration and Multicultural and Indigenous Affairs, Re [2006] AATA 145 …. 5.150 Callejo and Dept of Immigration and Citizenship, Re (2010) 51 AAR 308; [2010] AATA 244; BC201002036 …. 1.4.77, 5.155 Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 …. 5.114 Cannon and Australian Quality Egg Farms, Re (1994) 1 QAR 491 …. 5.189 Chandra and Minister for Immigration and Ethnic Affairs, Re [1984] AATA 437 …. 5.93 Chapman v Luminis Pty Ltd (No 5) (2002) 123 FCR 62 …. 1.4.156 Chemical Trustee Ltd and Commissioner of Taxation [2013] AATA 623 …. 1.4.75, 5.15 Chief Commissioner of Police v McIntosh [2010] VSC 439; BC201007183 ….

1.3.74 Cichello v Department of Justice [2014] VCAT 340 …. 1.4.75, 1.4.203 Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41 …. 5.142 College of Law Ltd v Australian National University [2013] FCA 492 …. 5.125 Comcare v Foster (2006) 42 AAR 434 …. 5.117 — v — (2006) 150 FCR 301 …. 5.128 Commonwealth of Australia v Dutton (2000) 102 FCR 168 …. 5.116 — v Hittich [1994] FCA 1324 …. 1.4.26 — v John Fairfax & Sons Ltd (1980) 32 ALR 485 …. 5.143, 5.154 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; 13 ALD 254; 74 ALR 428; 10 IPR 53 …. 1.4.180, 5.139, 5.143–5.146, 5.149, 5.154 Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 …. 1.2.13, 1.3.40 Crowe and Department of the Treasury [2013] AICmr 69 …. 5.69 Cullen and Australian Federal Police, Re [1991] AATA 671 …. 5.93 ‘D’ and Civil Aviation Safety Authority [2013] AICmr 13 …. 5.191 Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103; [2011] QSC 285; BC201107524 …. 1.1.6 Denehy and Superannuation Complaints Tribunal, Re (2012) 131 ALD 413; [2012] AATA 608; BC201206785 …. 1.4.121 Department of Employment, Workplace Relations and Small Business v Staff Development and Training Company (2001) 114 FCR 301 …. 5.184 Department of Health v Jephcott (1985) 8 FCR 85; 9 ALD 35; 62 ALR 421 …. 1.4.76, 5.83, 5.89 Department of Premier and Cabinet [2014] SA Omb FOI 7 …. 1.3.75 Doney and Department of Finance and Deregulation [2012] AICmr 25 ….

5.132, 5.134, 5.138 Donnellan v Linking Melbourne Authority [2014] VCAT 1027 …. 1.4.55 Doulman and CEO of Customs, Re [2003] AATA 883 …. 5.79 Drake v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60 …. 1.6.55 Druett and Centrelink [2012] AATA 390; BC201204558 …. 1.6.57 Dunn and the Department of Defence, Re [2004] AATA 1040 …. 5.28 Dykstra and Centrelink, Re [2002] AATA 659 …. 5.95 Edelsten and Australian Federal Police, Re [1985] AATA 350 …. 5.102 Environment Centre NT Inc and Department of the Environment, Sport and Territories, Re [1994] AATA 301 …. 5.36 Essential Services Commission of South Australia [2014] SA Omb FOI 8 …. 1.4.75 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67; BC9908417 …. 1.4.132, 5.124 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404; 141 ALR 92; 71 ALJR 81; BC9605762 …. 1.4.132 Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113 …. 1.4.59, 1.4.75 Fisse and Department of Treasury, Re (2008) 101 ALD 424; 48 AAR 131; [2008] AATA 288; BC200802374 …. 1.4.48, 5.59 Ford and Child Support Registrar, Re [2006] AATA 283 …. 5.96 Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 …. 1.4.69 Frugtniet v Legal Services Board [2014] VCAT 1299 …. 1.4.202 Glascott v Victoria Police [2014] VCAT 615 …. 1.4.121, 1.4.189 Gold and Australian Federal Police and National Crime Authority, Re [1994]

AATA 382 …. 5.74, 5.91 Grant v Downs (1976) 135 CLR 674 …. 5.118 Grass and Secretary, Department of Immigration and Border Protection [2014] AATA 751 …. 1.5.3 Green v Department of Human Services [2014] VCAT 1233 …. 1.4.155 Grounds and Australian Federal Police [2011] AATA 358 …. 1.4.75 H and Department of Education, Re [2014] WAI Cmr 21 …. 1.4.69 Hamden and Centrelink [2011] AATA 587; BC201107107 …. 1.3.75 Hamden and Department of Human Services [2013] AICmr 41 …. 5.118, 5.134 Haneef and Australian Federal Police, Re [2009] AATA 51 …. 5.30, 5.129 Haneef and Australian Federal Police and Commonwealth Director of Public Prosecutions, Re [2010] AATA 514 …. 5.135 Harts Pty Ltd and Tax Agents’ Board (Qld), Re [1994] AATA 349 …. 5.148 Hassan v Australian Health Practitioner Regulation Agency [2014] QCAT 414 …. 1.4.13 Hassell and Department of Health of Western Australia, Re [1994] WAICmr 25 …. 5.189, 5.190 Hennessy v Department of Justice [2013] VCAT 1310 …. 1.3.76 Herington v Department of Transport, Planning and Local Infrastructure [2014] VCAT 1026 …. 1.4.69 Hocking and Department of Defence, Re [1987] AATA 602 …. 5.27, 5.107 ‘I’ and Australian National University, Re [2012] AICmr 12 …. 5.95 James and Australian National University, Re [1984] AATA 18 …. 5.20 Jephcott and Department of Community Services, Re [1986] AATA 248 …. 5.84 JWHL and Commissioner of Taxation [2012] AATA 337; BC201204530 ….

1.4.75 Katz v Victoria Police [2013] VCAT 2046 …. 1.4.121 Khorramdel and Department of Human Services [2011] AATA 803; BC201108667 …. 1.4.132 — [2012] AATA 707; BC201207866 …. 1.3.75 KJ Aldred and Department of Prime Minister and Cabinet, Re [1989] AATA 148 …. 5.174 Kline and Official Secretary to the Governor-General, Re (2012) 127 ALD 639; [2012] AATA 247; BC201202512 …. 1.1.18 Knapp and Australian Accounting Standards Board [2014] AATA 744 …. 1.2.22 Lander and Australian Taxation Office, Re [1985] AATA 296 …. 5.88 Lansing Linde Ltd v Kerr (1990) 21 IPR 529 …. 5.185 Laurence William Maher and Attorney-General’s Department, Re [1985] AATA 180 …. 5.25 Lester and Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646 …. 1.2.22 Lobo and Dept of Immigration and Citizenship (2011) 124 ALD 238; 56 AAR 1; [2011] AATA 705; BC201107877 …. 1.4.13, 1.4.26, 1.4.36, 1.4.76 Luck v Independent Broad-based Anti-Corruption Commission [2013] VCAT …. 1.1.5, 1.1.6 McKinnon v Secretary, Dept of Treasury (2006) 228 CLR 423; 91 ALD 516; [2006] HCA 45; BC200606901 …. 1.4.131 McKinnon and Department of Foreign Affairs, Re [2004] AATA 1365 …. 5.122 McKinnon and Department of Immigration and Citizenship [2012] AICmr 34 …. 5.188, 5.189, 5.191

McKinnon and Department of Prime Minister and Cabinet, Re [2007] AATA 1969 …. 5.64 McKnight and Australian Archives, Re [1992] AATA 225 …. 5.30, 5.33 Maher and Attorney-General’s Department [1986] AATA 16 …. 5.24, 5.31, 5.36, 5.38 Maksimovic and Attorney-General’s Department, Re [2008] AATA 1089 …. 5.31, 5.32 Maksimovic and Australian Customs Service, Re [2009] AATA 28 …. 5.14, 5.76 Maksimovic and Commonwealth Director of Public Prosecutions [2009] AATA 700; BC200908315 …. 1.4.75 Malcolm Thomas Drabsch and Collector of Customs and Ingersoll-Rand (Australia) Ltd, Re [1990] AATA 265 …. 5.153 Mangan and The Treasury, Re [2005] AATA 898 …. 5.189 Mann v Carnell (1999) 201 CLR 1 …. 5.117, 5.131 Matthews and Australian Securities and Investments Commission [2014] AATA 769 …. 1.3.35, 1.4.122, 1.4.146, 1.4.182 Metcalf Pty Ltd and Western Power Corporation, Re [1996] WAICmr 23 …. 5.189 Minter Ellison and Australian Customs Service, Re [1989] AATA 66 …. 5.150 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 …. 5.126 Murphy and Australian Electoral Commission, Re [1994] AATA 149 …. 5.103 Murphy and Queensland Treasury, Re [1995] QICmr 23 …. 5.96 Murtagh and Federal Commissioner of Taxation, Re [1984] AATA 249 …. 5.77, 5.80 News Corporation Ltd v National Companies and Securities Commission, Re

(1984) 5 FCR 88 …. 5.15, 5.78 Nicholls and Commissioner of Taxation [2012] AATA 328; BC201203807 …. 1.3.75 Nikjoo and Minister for Immigration and Border Protection [2013] AATA 921 …. 1.4.181 Nitas and Minister for Immigration and Multicultural Affairs, Re [2001] AATA 392 …. 5.34 Noonan v Ambulance Victoria [2014] VCAT 534 …. 1.4.156 O’Donoghue and Department of Immigration and Citizenship, Re [2013] AATA 30; BC201300107 …. 1.4.121, 1.4.122 O’Donovan and Attorney-General’s Department, Re [1985] AATA 330 …. 5.24 Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79; BC201301724 …. 1.2.18 O’Grady v Australian Federal Police [1983] AATA 390 …. 5.80, 5.97 Organon (Aust) Pty Ltd and Department of Community Services and Health, Re [1987] AATA 396 …. 5.186 Osland v Secretary to the Dept of Justice [2008] HCA 37 …. 5.131 — v — (No 2) (2010) 241 CLR 320; 116 ALD 1; [2010] HCA 24; BC201004221 …. 1.2.18, 1.4.202, 1.6.65 O’Sullivan and Department of Foreign Affairs and Trade [2013] AICmr 36 …. 5.32, 5.36 Pallas v Roads Corporation [2013] VCAT 1967 …. 1.4.156 Parisi and Australian Federal Police (Qld), Re [1987] AATA 395 …. 5.106 Park and South Metropolitan Health Service, Re [2014] WAI Cmr 18 …. 1.3.72 Petroulias and Others and Commissioner of Taxation [2006] AATA 333 …. 5.142

— v — (2010) 122 ALD 153; [2010] AATA 1060; BC201010273 …. 1.4.91, 5.85 Philip Morris Ltd and Prime Minister (2011) 122 ALD 619; [2011] AATA 556; BC201106101 …. 1.4.60, 1.4.133 Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317 …. 5.120 Public Interest Advocacy Centre and Department of Community Services and Health and Searle Australia Pty Ltd (No 2), Re [1991] AATA 723 …. 5.32 QVFT and Secretary, Department of Immigration and Citizenship [2011] AATA 763; BC201108327 …. 1.4.59, 1.4.76 — v — [2012] AATA 501; BC201205544 …. 1.3.73 Rees and Australian Federal Police, Re [1999] AATA 252 …. 5.92 — v — AATA 444 …. 5.78 Rudd and Civil Aviation Safety Authority [2013] AICmr 56 …. 5.118, 5.134 Russo v Australian Securities Commission, Re [1992] AATA 228 …. 5.102 Saggers v Environment Protection Authority [2014] NSWCATAD 37 …. 1.4.132 Sarchese and Secretary, Dept of Agriculture, Fisheries and Forestry [2011] AATA 849; BC201109254 …. 1.4.121, 1.4.181 Scott v Office of the Assistant Treasurer [2013] VCAT 2015 …. 1.4.69, 1.4.203 Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 …. 5.185, 5.187 Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15 …. 5.31, 5.37 Secretary, Department of Health and Ageing v iNova Pharmaceuticals

(Australia) Pty Ltd [2010] FCA 1442 …. 5.45 Secretary, Department of Justice v Osland (2007) 26 VAR 425 …. 1.4.69 Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 …. 1.6.76 Secretary, Department of Primary Industries v Environment Victoria Inc [2013] VSC 300 …. 1.6.76 Secretary, Department of Prime Minister and Cabinet v Haneef (2010) 52 AAR 360 …. 5.36 Simring and High Court of Australia, Re (2006) 44 AAR 103; [2006] AATA 849; BC200608023 …. 1.1.18 Slater and Cox (Director-General of Australian Archives), Re [1988] AATA 110 …. 5.27, 5.31, 5.34 Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services & Health (1989) 89 ALR 366 …. 5.155 Sobczuk and Carnarvon Medical Service Aboriginal Corp, Re (1999) 58 ALD 727; 31 AAR 7; [1999] AATA 864 …. 1.2.51 Spragg and Chief Executive Officer of Customs [2014] AATA 667 …. 1.1.8 Tabcorp Holdings Ltd v Secretary to the Department of Treasury and Finance (No 1) [2013] VCAT 1234 …. 1.2.47 — v — [2013] VCAT 1731 …. 1.3.76 Tand Queensland Health, Re (1994) 1 QAR 386 …. 5.103 Tee v Department of Planning and Community Development [2013] VCAT 1150 …. 1.4.59 Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 MHB …. 5.121 Telstra Corp Ltd and Dept of Broadband, Communications and the Digital Economy (2010) 113 ALD 623; [2010] AATA 118; BC201000521 …. 1.4.45 Thies and Department of Aviation, Re [1986] AATA 141 …. 5.17, 5.106

Throssell and Australian Archives, Re [1987] AATA 453 …. 5.27 Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union (1979) 27 ALR 367 …. 5.17 Timothy Edward Anderson and Department of Special Minister of State (No 2) [1986] AATA 81 …. 1.4.79 Toomer and Department of Agriculture, Fisheries and Forestry, Re [2003] AATA 1301 …. 5.58, 5.60, 5.66, 5.70 Upper Dumaresq Action Group and Australian Competition and Consumer Commission [2013] AICmr 47 …. 5.143 Vance v McCormack and the Commonwealth [2004] ACTSC 78 …. 5.122 Victoria Police v Burton [1999] VSC 534 …. 1.3.76 — v Marke (2008) 23 VR 223; [2008] VSCA 218; BC200809698 …. 1.4.121, 1.4.129 Victorian Public Service Board v Wright [1986] HCA 16; (1986) 64 ALR 206 …. 1.2.47 Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 …. 5.126 ‘W’ and the Australian Federal Police [2013] AICmr 39 …. 5.35 Wake and Australian Broadcasting Corporation [2013] AICmr 45 …. 5.36 Walker and Australian Federal Police [2010] AATA 965 …. 1.4.75, 1.4.145 Wallace and Australian Federal Police (2004) 83 ALD 679; [2004] AATA 845 …. 1.4.78, 1.4.79 Waterford v Commonwealth of Australia (1987) 163 CLR 54 …. 5.118, 5.120 Waterford and Department of Treasury, Re (No 2) (1984) 5 ALD 588; 1 AAR 1 …. 1.4.59 ‘X’ and Australian Federal Police, Re [2013] AICmr 40 …. 5.89

Yarra CC v Roads Corporation [2009] VCAT 2646 …. 1.4.59 Young and Commissioner of Taxation, Re [2008] AATA 155 …. 5.111

Table of Statutes References are to paragraph numbers

Commonwealth Administrative Appeals Tribunal Act 1975 …. 1.6.57 s 29(2) …. 1.6.57 Archives Act 1983 …. 1.2.22, 5.27 Australian Information Commissioner Act 2010 s 5 …. 1.1.8 Australian War Memorial Act 1980 …. 1.2.23 Child Support (Registration and Collection) Act 1988 s 16(2)(b) …. 1.1.22 Crimes (Taxation Offences) Act 1980 s 4 …. 1.1.22 Dairy Produce Act 1986 …. 1.1.18 Electoral Act 1918 …. 5.193, 5.195 Evidence Act 1995 …. 5.116 Federal Court Rules 2011 …. 1.6.68 Freedom of Information Act 1982 …. 1.1.3, 1.1.5, 1.1.21, 1.4.80, 1.4.84, 1.4.87, 1.4.102, 1.4.191, 1.4.200, 1.4.201, 1.5.3, 1.5.14, 5.19, 5.116, 5.142 Pt II …. 5.137 Pt IV …. 1.3.88, 1.4.1, 5.1, 5.2, 5.5 Pt IV, Div 2 …. 5.6, 5.7 Pt IV, Div 3 …. 1.4.11, 5.8 Pt VIIIB …. 1.6.78 s 3(1) …. 1.1.5, 1.1.11

s 3(2) …. 1.1.5, 1.2.39 s 3(2)(b) …. 1.2.39 s 3A …. 1.2.39, 5.7, 5.10 s 3A(1) …. 1.2.39 s 4 …. 1.4.11, 1.4.45 s 4(1) …. 1.1.7, 1.1.18, 1.2.23, 1.2.50, 1.2.52, 1.5.2, 5.1, 5.48, 5.55 s 4(5) …. 5.26 s 4(10) …. 5.38 s 5 …. 1.1.7, 1.1.18 s 6 …. 1.1.7, 1.1.18 s 6A …. 1.1.7 s 7(1) …. 1.1.18, 5.158 s 7(2) …. 1.1.18 s 7(2AA) …. 1.1.18 s 7(2A) …. 1.1.18, 1.1.20 s 7(2A)(a)(ii) …. 1.1.18 s 7(2B) …. 1.1.18 s 7(3) …. 1.1.18 s 8 …. 5.137 s 8A …. 1.4.62, 1.4.131, 5.137 s 11(1) …. 1.2.1, 1.2.21 s 11(1)(a) …. 1.4.2 s 11(2) …. 1.2.1 s 11A …. 1.3.50, 5.1 s 11A(1) …. 1.3.20, 1.3.21, 1.3.24 s 11A(4) …. 1.3.21, 1.3.24, 1.4.14, 5.10 s 11A(5) …. 1.3.21, 1.4.12, 5.5, 5.9, 5.10 s 11A(6) …. 1.3.21, 5.10

s 11B …. 5.10 s 11B(3) …. 1.4.15 s 11B(4) …. 1.4.14 s 12 …. 1.2.21 s 12(1)(a) …. 1.2.22 s 12(1)(c) …. 1.2.22 s 12(2) …. 1.2.24 s 13(1) …. 1.2.23 s 13(1)(a) …. 1.2.23 s 15 …. 1.2.39, 1.2.76, 5.165 s 15(1) …. 1.2.73 s 15(2) …. 1.2.73, 1.3.20 s 15(2A) …. 1.2.74 s 15(3) …. 1.2.74 s 15(5)(a) …. 1.2.75 s 15(5)(b) …. 1.2.75 s 15(7) …. 5.40 s 15(8) …. 5.40 s 15(8)(b) …. 5.40 s 15A(1) …. 1.2.76 s 15A(2) …. 1.2.76 s 16(1) …. 1.3.1 s 16(5)(b) …. 1.3.2 s 16(6) …. 1.3.1 s 17(1)(c) …. 1.3.11 s 17(2) …. 1.3.11 s 20 …. 1.3.32

s 20(1)(a) …. 1.3.32 s 20(1)(b) …. 1.3.32 s 20(1)(c) …. 1.3.32, 1.3.48 s 20(2) …. 1.3.33 s 20(3) …. 1.3.32, 1.3.33 s 21 …. 1.3.47 s 21(1)(b) …. 5.180 s 21(1)(c) …. 1.3.47 s 22 …. 1.3.32, 1.3.33, 1.3.50, 5.3, 5.10, 5.112, 5.138 s 22(3) …. 1.3.50 s 23(1) …. 1.3.59 s 23(2) …. 1.3.60 s 24(2)(a) …. 1.3.71 s 24AA …. 1.3.70, 1.3.78, 1.3.82–1.3.85 s 24AA(1)(a)(i) …. 1.3.70 s 24AA(1)(a)(ii) …. 1.3.70 s 24A …. 1.3.75, 1.3.78 s 25 …. 5.43, 5.44, 5.45, 5.108, 5.167 s 25(2) …. 1.3.87 s 26 …. 1.3.100, 5.4, 5.43, 5.45 s 26(1) …. 1.3.98, 1.6.6 s 26(1)(a) …. 1.3.98 s 26(1)(aa) …. 1.3.98, 5.9 s 26(1)(b) …. 1.3.98 s 26(1)(c) …. 1.3.98 s 26(2) …. 5.18, 5.45 s 26(2)(b) …. 1.3.88 s 26A …. 1.3.109

s 26A(1) …. 1.3.109 s 26A(2) …. 1.3.108 s 26A(3) …. 1.3.110 s 26A(4) …. 1.3.110 s 26AA …. 1.3.112 s 27 …. 1.3.113, 5.192 s 27(4) …. 1.3.114 s 27(7) …. 1.3.114 s 27A …. 1.3.116 s 27A(3) …. 1.3.117 s 27A(6) …. 1.3.117 s 31A …. 5.10 s 32 …. 5.10 s 33 …. 1.3.87, 1.4.26, 5.6, 5.21, 5.43, 5.46 s 33(a) …. 1.4.25, 5.12 s 33(a)(iii) …. 5.40 s 33(b) …. 1.4.25, 5.35, 5.40 s 33A(1) …. 1.4.36 s 34 …. 5.6, 5.47, 5.48 s 34(1) …. 5.53, 5.63, 5.67 s 34(1)(a) …. 1.4.45, 5.50, 5.56, 5.57, 5.61 s 34(1)(b) …. 1.4.45, 5.50, 5.60 s 34(1)(c) …. 1.4.45, 5.50, 5.61 s 34(1)(d) …. 1.4.45, 5.50, 5.62 s 34(2) …. 1.4.45, 5.51, 5.53, 5.63, 5.64, 5.67 s 34(3) …. 1.4.45, 5.52, 5.53, 5.57, 5.65, 5.67, 5.70 s 34(4) …. 5.54, 5.57

s 34(5) …. 5.54 s 34(6) …. 1.4.46, 5.54, 5.67, 5.69 s 34(6)(b) …. 5.70 s 35 …. 1.4.47 s 36(1)(a) …. 1.4.58 s 37 …. 1.4.75, 5.6, 5.15, 5.73, 5.76 s 37(1) …. 1.3.87, 5.12, 5.43, 5.71, 5.108 s 37(1)(a) …. 1.4.71, 1.4.75, 5.74, 5.77, 5.81, 5.82 s 37(1)(b) …. 1.4.71, 1.4.76, 5.74, 5.82, 5.87 s 37(1)(c) …. 1.4.71, 1.4.73, 1.4.77, 5.95 s 37(2) …. 5.12, 5.71 s 37(2)(a) …. 1.4.71, 1.4.78, 5.97 s 37(2)(b) …. 1.4.71, 1.4.79, 5.98, 5.102, 5.105 s 37(2)(c) …. 1.4.71, 5.104, 5.105, 5.107 s 37(2A) …. 1.4.74, 5.86 s 37(2A)(a) …. 1.4.74 s 37(3) …. 1.4.72, 5.72 s 38 …. 1.1.22, 1.4.88, 1.4.92, 5.6, 5.110, 5.111, 5.112, 5.113 s 38(1) …. 1.4.88, 5.112 s 38(1)(a) …. 5.109 s 38(1)(b)(i) …. 5.109 s 38(1)(b)(ii) …. 5.109 s 38(1A) …. 1.1.23, 1.4.89, 5.111 s 38(2) …. 1.4.90, 5.112, 5.113 s 38(3) …. 1.4.90, 5.113 s 41 …. 1.4.118 s 42 …. 5.6, 5.129, 5.134, 5.138 s 42(1) …. 1.4.131, 1.4.134, 1.4.137, 1.4.138, 1.4.139, 1.4.140, 1.4.141,

5.115, 5.136 s 42(2) …. 1.4.131, 1.4.134, 5.127 s 42(3) …. 1.4.131, 1.4.134, 5.136 s 45 …. 5.6, 5.143 s 45(2) …. 1.4.179, 5.140 s 45A …. 5.6, 5.43, 5.158, 5.167 s 45A(1) …. 1.4.179, 1.4.185, 5.139, 5.157 s 45A(1)(a) …. 5.159 s 45A(1)(b) …. 5.159 s 45A(1)(c) …. 5.159 s 45A(1)(d) …. 5.159 s 45A(2) …. 5.160 s 45A(3) …. 5.162 s 45A(4) …. 5.163 s 45A(5) …. 5.163 s 45A(6) …. 5.163 s 45A(7) …. 5.163 s 45A(8) …. 5.161 s 46 …. 1.4.192, 1.4.195, 1.4.197, 1.4.198, 5.6, 5.168 s 46(a) …. 1.4.191, 5.171, 5.173 s 46(b) …. 1.4.191, 5.171, 5.174 s 46(c) …. 5.171, 5.177, 5.178, 5.179 s 47 …. 1.3.113, 1.3.115, 5.6, 5.8, 5.181 s 47(1) …. 1.4.144 s 47(1)(b) …. 5.12, 5.188, 5.191 s 47(2) …. 5.182 s 47A …. 5.6 s 47A(1) …. 5.194

s 47A(2) …. 5.193 s 47A(2)(a) …. 1.4.200 s 47A(3) …. 5.195 s 47A(4) …. 5.195 s 47A(5)(a) …. 5.195 s 47A(5)(b) …. 5.195 s 47B …. 1.3.109, 1.3.111, 5.8, 5.12 s 47B(a) …. 1.4.35, 1.4.36 s 47B(b) …. 1.4.35 s 47B(c) …. 1.4.35 s 47C …. 1.4.65, 5.8, 5.69, 5.157 s 47C(1) …. 1.4.58, 5.140, 5.157 s 47C(2) …. 1.4.62, 5.140, 5.157 s 47C(3) …. 1.4.62, 5.140, 5.157 s 47D …. 1.4.100, 5.8, 5.16, 5.18 s 47E …. 1.4.109, 1.4.110, 1.4.111, 1.4.113, 1.4.114, 1.4.116, 1.4.117, 5.8 s 47E(a)-(d) …. 5.12 s 47E(a) …. 1.4.109, 5.18 s 47E(b) …. 5.18 s 47E(c) …. 5.16, 5.18 s 47E(d) …. 1.4.109, 5.16, 5.18 s 47F …. 1.3.116, 1.3.118, 1.4.123, 1.4.125, 1.4.126, 5.8, 5.141 s 47F(1) …. 1.4.118 s 47F(2) …. 1.4.123 s 47F(3) …. 1.4.119 s 47F(5) …. 1.4.119 s 47F(7) …. 1.4.119

s 47G …. 1.3.113, 1.3.115, 1.4.142, 1.4.143, 1.4.149, 1.4.151, 1.4.152, 5.8, 5.141 s 47G(1) …. 1.4.144 s 47G(1)(a) …. 1.4.142, 1.4.143, 5.12 s 47G(1)(b) …. 5.12, 5.19 s 47G(4) …. 1.4.147 s 47G(5) …. 1.4.148 s 47H …. 1.4.158, 1.4.159, 1.4.161, 1.4.162, 1.4.163, 1.4.164, 1.4.166, 1.4.167, 5.8 s 47J …. 1.4.171, 1.4.173, 1.4.174, 5.8, 5.16, 5.18 s 47J(1) …. 1.4.168 s 47J(2) …. 1.4.169 s 47J(3) …. 1.4.170 s 48 …. 1.5.1, 1.5.5, 1.5.11, 1.5.12, 1.5.23 s 49 …. 1.5.13, 5.176 s 49(a) …. 1.5.13 s 49(b) …. 1.5.13 s 49(c) …. 1.5.13 s 49(d) …. 1.5.13 s 50 …. 5.177 s 50(1) …. 1.5.23 s 50(2) …. 1.5.24 s 50(2)(a) …. 1.5.24 s 51 …. 1.5.25 s 51A …. 1.5.34 s 51AC(c) …. 1.5.35 s 51B …. 1.5.35 s 51C …. 1.5.23, 1.5.35, 1.5.44, 1.5.45, 1.5.47, 1.5.49, 1.5.50, 1.5.51

s 51D …. 1.5.53, 1.5.54, 1.5.56, 1.5.58 s 53A …. 1.6.3 s 53A(a) …. 1.6.3 s 53B …. 1.6.3 s 54 …. 1.6.2 s 54(1) …. 1.6.2 s 54(2) …. 1.6.2 s 54A …. 1.6.2 s 54B …. 1.6.5 s 54B(2) …. 1.6.5 s 54C(2) …. 1.6.7 s 54C(3) …. 1.6.7 s 54C(4) …. 1.6.6 s 54G …. 1.6.43 s 54K(a) …. 1.6.40 s 54K(b) …. 1.6.40 s 54L(2) …. 1.6.40 s 54L note 1 …. 1.6.41 s 54L note 2 …. 1.6.8, 1.6.42 s 54M(2) …. 1.6.40 s 54M(2) note …. 1.6.8, 1.6.42 s 54N(2) …. 1.6.43 s 54W(b) …. 1.6.56 s 55 …. 1.6.44 s 55B …. 1.6.45 s 55K …. 1.6.56 s 55K(1) …. 1.6.44 s 55L …. 5.134

ss 55ZA-55ZD …. 5.46 s 56(1) …. 1.6.67 s 56(2) …. 1.6.67 s 56(6) …. 1.6.67 s 57A …. 1.6.57 s 57A(1) …. 1.6.56 s 57A(2) …. 1.6.57 s 89F …. 1.6.78 ss 90-92 …. 5.171 s 93A(2) …. 1.1.8 Sch 1 …. 1.3.60 Sch 2, Pt I Div 1 …. 1.1.18 Sch 2, Pt II Div 1 …. 1.1.18 Sch 3 …. 1.1.22, 1.4.88, 5.109 Sch 4 …. 1.4.158 Freedom of Information Amendment (Reform) Act 2010 …. 1.1.4 Freedom of Information (Charges) Regulations 1982 …. 1.3.20 Intelligence Services Act 2001 s 41(1) …. 1.1.22 Judiciary Act 1903 s 55B …. 5.122 s 55E …. 5.122 s 55ZH(4) …. 5.132 Migration Act 1958 s 503A …. 5.113 s 503D …. 5.113 Ombudsman Act 1976 …. 1.6.78

Parliamentary Privileges Act 1987 …. 5.176 s 13 …. 5.177 Parliamentary Service Act 1999 s 64E(1)(a) …. 5.161 s 64E(1)(c) …. 5.161 s 64H …. 5.161 s 64M …. 5.161 s 68A …. 5.158 Sch 2, Pt 1, Div 1 …. 5.158 Telecommunications (Interception and Access) Act 1979 s 63 …. 1.1.22 s 133 …. 1.1.22 Wine Australia Corporation Act 1980 …. 1.1.18

Australian Capital Territory Civil and Administrative Tribunal Act s 79 …. 1.6.70 s 86 …. 1.6.70 Freedom of Information Act 1989 …. 1.1.3, 1.2.6, 1.6.47 Pt 4 …. 1.4.3 s 2(1) …. 1.1.11 s 2(2) …. 1.2.41 s 3 …. 1.2.55, 1.2.56, 1.4.3 s 5 …. 1.1.20 s 6 …. 1.4.3 s 6(1) …. 1.1.20 s 6(2) …. 1.1.19 s 6(3) …. 1.1.19

s 6A(1) …. 1.2.25 s 10 …. 1.2.6 s 11(1)(a) …. 1.2.25 s 11(1)(b) …. 1.2.25 s 11(1)(c) …. 1.2.25 s 11(2) …. 1.4.49 s 11(3) …. 1.2.25 s 14(1) …. 1.2.79 s 14(2) …. 1.2.79 s 14(3)(a) …. 1.2.79 s 15 …. 1.3.3, 1.5.45 s 16(1) …. 1.3.12 s 17(1) …. 1.3.24 s 17(2) …. 1.3.24 s 18(1)(d) …. 1.2.79 s 19(1)(a) …. 1.3.36 s 19(1)(b) …. 1.3.36 s 19(2) …. 1.3.36 s 19(3) …. 1.3.36 s 21 …. 1.3.51 s 21(1)(b) …. 1.3.51 s 22 …. 1.3.61 s 23 …. 1.3.78 s 23(1) …. 1.3.61 s 23(2) …. 1.3.78 s 24 …. 1.3.90 s 25 …. 1.3.100 s 26 …. 1.3.119

s 27 …. 1.3.127 s 27(2) …. 1.3.135 s 27(3) …. 1.3.135 s 27A …. 1.3.135 s 29 …. 1.3.48 s 32(1)(a) …. 1.4.149 s 34 …. 1.3.119 s 34(1) …. 1.4.37 s 34(2) …. 1.4.37 s 35(1) …. 1.4.49 s 35(1)(a) …. 1.4.49 s 35(1)(b) …. 1.4.49 s 35(1)(d) …. 1.4.49 s 35(2) …. 1.4.49 s 35(3) …. 1.4.49 s 36 …. 1.4.17, 1.4.63 s 36(4)(c) …. 1.4.63 s 37 …. 1.4.80 s 37(3) …. 1.4.80 s 37A …. 1.4.27 s 38 …. 1.4.92, 1.4.98 s 39(1) …. 1.4.101 s 39(2) …. 1.4.101 s 40(2) …. 1.4.110 s 41 …. 1.4.17, 1.4.123 s 42(1) …. 1.4.134 s 43 …. 1.4.149

s 43(1) …. 1.4.159, 1.4.160 s 43(3) …. 1.4.149 s 44 …. 1.4.171 s 44(1)(a) …. 1.4.101 s 45(1) …. 1.4.183 s 46 …. 1.4.192 s 47 …. 1.4.201 s 48 …. 1.5.5, 1.5.15 s 49 …. 1.5.15 s 50(1) …. 1.5.26, 1.5.36 s 50(3) …. 1.5.54 s 51(4) …. 1.5.36 s 54(1) …. 1.6.79 s 59 …. 1.6.9 s 59(1)(a) …. 1.6.9 s 59(1)(b) …. 1.6.9 s 59(1)(c) …. 1.6.9 s 59(2) …. 1.6.11 s 59(4) …. 1.6.12 s 60 …. 1.6.59 Freedom of Information Regulation 1991 s 2 …. 1.2.55 Sch 1 …. 1.2.55 Health Records (Privacy and Access) Act 1997 s 18 …. 1.1.19 Territory-owned Corporations Act 1990 …. 1.1.20, 1.2.55

New South Wales

Administrative Decisions Tribunal Act 1987 s 113 …. 1.6.72 s 119 …. 1.6.72 Assisted Reproductive Technology Act 2007 Pt 3 …. 1.2.28 Bail Act 1978 s 36C …. 1.4.94 Government Information (Public Access) Act 2009 …. 1.1.3, 1.3.63, 1.4.82, 1.4.103, 1.4.112, 1.4.125, 1.4.151, 1.4.161, 1.4.185 Pt 5 …. 1.6.81 s 3(1) …. 1.2.43 s 3(2) …. 1.4.5 s 3(2)(a) …. 1.2.43 s 3(2)(b) …. 1.2.43 s 4 …. 1.1.20, 1.3.14, 1.4.51 s 4(1) …. 1.1.17, 1.1.19, 1.2.11, 1.2.60 s 4(2) …. 1.2.60, 1.2.61 s 4(3) …. 1.1.19 s 5 …. 1.4.19, 1.4.39, 1.4.173 s 9 …. 1.1.12, 1.1.17 s 9(1) …. 1.2.12 s 11 …. 1.1.24 s 12(1) …. 1.2.10, 1.4.19 s 13 …. 1.3.137 s 14 …. 1.2.28, 1.3.121, 1.4.29, 1.4.82, 1.4.94 s 14(1) …. 1.4.19 s 18 …. 1.2.10 s 19 …. 1.4.112

s 41 …. 1.3.14 s 41(1) …. 1.2.83 s 42(a) …. 1.2.84 s 43 …. 1.3.26 s 44 …. 1.3.5 s 45(2) …. 1.3.5 s 51 …. 1.3.26 s 53(2) …. 1.3.81 s 54(1) …. 1.3.129 s 54(2) …. 1.3.129 s 57 …. 1.3.26 s 57(1) …. 1.2.85 s 57(2) …. 1.2.85 s 58(1) …. 1.3.26 s 60(1) …. 1.3.80 s 61 …. 1.3.102 s 72(1)(a) …. 1.3.38 s 72(1)(b) …. 1.3.38 s 72(1)(c) …. 1.3.38 s 72(1)(d) …. 1.3.38 s 72(2)(a)-(d) …. 1.3.39 s 72(2)(a) …. 1.3.39 s 74 …. 1.3.53 s 75(2)(b) …. 1.3.92 s 78 …. 1.3.49 s 82(1) …. 1.6.17 s 83(1) …. 1.6.18 s 83(2) …. 1.6.18

s 84(1) …. 1.6.19 s 86(1) …. 1.6.20 s 86(2) …. 1.6.20 s 86(4) …. 1.6.20 s 89(1) …. 1.6.49 s 89(2) …. 1.6.49 s 90 …. 1.6.49 s 92(1) …. 1.6.49 s 100 …. 1.6.61 s 124 …. 1.6.81 Sch 1 …. 1.1.24, 1.2.28, 1.4.19, 1.4.39, 1.4.65, 1.4.94 Sch 1, cl 1 …. 1.2.28 Sch 1, cl 2 …. 1.2.29, 1.4.51 Sch 1, cl 3 …. 1.2.29 Sch 1, cl 4 …. 1.4.196, 1.4.199 Sch 1, cl 4(a) …. 1.4.194 Sch 1, cl 4(b) …. 1.4.194 Sch 1, cl 4(c) …. 1.4.194 Sch 1, cl 5(1) …. 1.4.136 Sch 1, cl 5(2) …. 1.4.136 Sch 1, cl 7 …. 1.4.29, 1.4.82 Sch 1, cl 8(1) …. 1.4.201 Sch 2 …. 1.1.20, 1.4.5, 1.4.112 Sch 2, cl 3 …. 1.3.129 Sch 4, cl 1 …. 1.2.60 Sch 4, cl 2 …. 1.2.60 Sch 4, cl 3 …. 1.2.60

Sch 4, cl 10 …. 1.3.14 Sch 4, cl 10(1) …. 1.2.61 Privacy and Personal Information Protection Act 1998 …. 1.5.47, 1.5.56 s 15(1) …. 1.5.7, 1.5.17, 1.5.28, 1.5.38 s 15(2) …. 1.5.38

Northern Territory Adoption of Children Act 1994 s 71(1) …. 1.4.93 Information Act 2002 …. 1.1.3, 1.6.80 Pt 4 Div 2 …. 1.4.4 Pt 4 Div 3 …. 1.4.4, 1.4.18 s 3(1) …. 1.1.12 s 3(2) …. 1.2.42 s 4 …. 1.2.8, 1.2.59, 1.3.13 s 5 …. 1.1.20 s 5(1) …. 1.2.58 s 5(1)(i) …. 1.1.17 s 5(5) …. 1.1.19, 1.2.58 s 5(7) …. 1.3.62 s 12(2)(a) …. 1.2.26 s 12(2)(b) …. 1.2.26 s 12(2)(c) …. 1.2.26 s 15 …. 1.2.7 s 16(3) …. 1.5.27 s 16(a) …. 1.2.7 s 16(b) …. 1.5.6 s 16(c) …. 1.5.6

s 17(1) …. 1.5.55 s 17(3) …. 1.5.27 s 18(1) …. 1.1.17, 1.2.7 s 18(2) …. 1.2.80 s 18(2A) …. 1.2.81 s 18(3) …. 1.2.81 s 19(1) …. 1.2.82 s 20 …. 1.3.91, 1.3.101 s 20(b) …. 1.3.101 s 21 …. 1.3.62 s 21(2) …. 1.3.25 s 21(2)(a) …. 1.3.37 s 22 …. 1.3.52 s 22(2)(b) …. 1.3.52 s 23 …. 1.3.49 s 24(1) …. 1.3.25 s 24(2) …. 1.3.101 s 24(3) …. 1.3.91 s 25(1) …. 1.3.37, 1.3.79 s 27(1) …. 1.3.79 s 29 …. 1.3.4 s 30(1)(c) …. 1.3.136 s 31 …. 1.5.16 s 34 …. 1.5.27 s 34(1) …. 1.5.27 s 35 …. 1.5.37 s 37 …. 1.5.46 s 38(1) …. 1.6.13

s 38(2) …. 1.6.13 s 39(1) …. 1.6.16 s 39(2) …. 1.6.14 s 39(3) …. 1.6.15 s 43(1) …. 1.4.160 s 44 …. 1.2.9, 1.4.135, 1.4.193 s 45 …. 1.4.50, 1.4.56 s 45(1)(a)(i) …. 1.4.50 s 45(1)(a)(ii) …. 1.4.50 s 45(1)(a)(vi) …. 1.4.50 s 45(2) …. 1.4.50 s 45(3) …. 1.4.50 s 46 …. 1.4.81 s 46(1)(a) …. 1.4.28 s 46(2)(a) …. 1.4.81 s 46(3) …. 1.4.81 s 48 …. 1.1.24, 1.4.93 s 49(d) …. 1.4.135 s 49(e) …. 1.4.193 s 49(f) …. 1.4.193 s 49C(a) …. 1.4.201 s 50 …. 1.2.9, 1.3.130, 1.4.4, 1.4.124, 1.4.160, 1.4.172 s 50(1) …. 1.4.18, 1.4.38 s 50(2) …. 1.4.18 s 51 …. 1.3.120, 1.4.38 s 52 …. 1.4.18, 1.4.64 s 52(4) …. 1.4.64

s 53 …. 1.4.111 s 55(1) …. 1.4.184 s 56(1) …. 1.4.124 s 57(1) …. 1.3.128 s 57(1)(a) …. 1.4.150 s 57(1)(b) …. 1.4.150 s 57(2) …. 1.4.150 s 57(2)(a) …. 1.4.150 s 57(2)(b) …. 1.4.150 s 57(3) …. 1.4.160 s 58 …. 1.4.102, 1.4.172 s 58(1) …. 1.4.150 s 60(1) …. 1.2.27 s 85(1) …. 1.6.48 s 103 …. 1.6.48 s 106(1) …. 1.6.48 s 106(3) …. 1.6.48 s 106(4) …. 1.6.48 s 129(1) …. 1.6.60, 1.6.71 Sch 1 …. 1.1.24, 1.4.93

Queensland Biodiversity Act 2004 …. 1.4.162 Child Protection Act 1999 ss 186–188 …. 1.4.95 Civil and Administrative Tribunal Act 2009 s 143(1) …. 1.6.73 s 149 …. 1.6.73

Freedom of Information Act 1999 …. 5.96 Gene Technology Act 2001 …. 1.4.162 Information Privacy Act 2009 s 41(1) …. 1.5.8, 1.5.18 s 44 …. 1.5.18 s 44(4)(a) …. 1.5.18 s 58 …. 1.5.29 s 58(1) …. 1.5.29 s 59 …. 1.5.48 s 70(a) …. 1.5.29 s 74 …. 1.5.39 Integrity Act 2009 Ch 3 …. 1.2.31 Prostitution Act 1999 …. 1.2.31 Right to Information Act 2009 …. 1.1.3, 1.4.104, 1.4.113, 1.4.152, 1.4.174, 1.6.82 s 3(1) …. 1.1.13, 1.2.44 s 3(2) …. 1.2.44 s 11 …. 1.2.30 s 14(1) …. 1.2.62 s 16 …. 1.2.62 s 18 …. 1.2.87 s 23 …. 1.1.17 s 23(1) …. 1.2.14, 1.2.63 s 24 …. 1.2.86 s 26(1) …. 1.4.127 s 26(2) …. 1.4.127 s 27(1) …. 1.3.82

s 28(1) …. 1.3.15 s 30(1) …. 1.3.64 s 30(3) …. 1.3.64 s 30(4) …. 1.3.64 s 31(1) …. 1.3.64 s 37 …. 1.3.138 s 37(1) …. 1.3.130 s 37(2) …. 1.3.138 s 38 …. 1.3.6 s 38(2) …. 1.3.6 s 41(1) …. 1.3.82 s 42 …. 1.3.82 s 43 …. 1.3.82 s 44(1) …. 1.2.14, 1.3.27 s 44(3) …. 1.3.27 s 47 …. 1.1.20 s 47(3)(a) …. 1.3.103 s 48(1) …. 1.4.20 s 48(2) …. 1.4.20, 1.4.30 s 48(4) …. 1.4.6 s 49(1) …. 1.3.122 s 54 …. 1.3.103 s 54(2)(g)(iii)(B) …. 1.3.103 s 55(1) …. 1.3.93 s 55(4) …. 1.3.93 s 68(1) …. 1.3.41 s 68(3) …. 1.3.15, 1.3.41 s 68(4) …. 1.3.41

s 68(4)(a) …. 1.3.15 s 72 …. 1.3.41, 1.3.49 s 73 …. 1.3.54, 1.5.57 s 74 …. 1.3.54 s 75 …. 1.3.54 s 80(1) …. 1.6.21 s 81 …. 1.6.24 s 82(c) …. 1.6.22 s 83(1) …. 1.6.23 s 85 …. 1.6.50 s 86 …. 1.6.50 s 88 …. 1.6.50 s 95(1)(a) …. 1.6.50 s 110(1) …. 1.6.50 s 119(1) …. 1.6.62 s 119(2) …. 1.6.62 Sch 1 …. 1.1.20, 1.2.63 Sch 1, cl 1 …. 1.2.30 Sch 1, cl 2 …. 1.2.30 Sch 1, cl 6 …. 1.2.31, 1.4.127 Sch 1, cl 6(1) …. 1.4.127 Sch 1, cl 7 …. 1.2.31 Sch 1, cl 11 …. 1.4.162 Sch 1, cl 12 …. 1.4.162 Sch 1, cl 12(1) …. 1.4.95 Sch 1, cl 12(2) …. 1.4.95 Sch 2 …. 1.1.19, 1.1.20, 1.2.62

Sch 3 …. 1.2.63, 1.3.103, 1.4.6, 1.4.20, 1.4.40, 1.4.66 Sch 3, cl 2 …. 1.4.52 Sch 3, cl 3 …. 1.4.20 Sch 3, cl 4B …. 1.4.201 Sch 3, cl 6 …. 1.4.195 Sch 3, cl 7 …. 1.4.137 Sch 3, cl 8(1) …. 1.4.186 Sch 3, cl 8(2) …. 1.4.186 Sch 3, cl 8(3) …. 1.4.186 Sch 3, cl 9 …. 1.4.30 Sch 3, cl 9(1) …. 1.4.30 Sch 3, cl 10 …. 1.4.83 Sch 3, cl 10(1)(d) …. 1.4.83 Sch 3, cl 10(1)(h) …. 1.4.83 Sch 4 …. 1.3.122 Sch 6 …. 1.3.93 Terrorism (Preventative Detention) Act 2005 …. 1.2.30

South Australia District Court Act 1991 s 43 …. 1.6.74 Freedom of Information Act 1991 …. 1.1.3, 1.1.20, 1.4.105, 1.5.49, 1.6.83 s 3(1) …. 1.1.14 s 3(1)(a) …. 1.2.15, 1.2.45 s 3(2)(a) …. 1.2.15 s 3(2)(b) …. 1.1.14, 1.2.15 s 3A(1)(a) …. 1.2.45 s 3A(1)(b) …. 1.2.45

s 4 …. 1.1.17, 1.2.32, 1.3.16, 1.4.7, 1.4.31, 1.4.41 s 4(1) …. 1.2.64 s 5A …. 1.1.19 s 6 …. 1.1.20 s 6(1)(a) …. 1.1.19 s 10(1)(a) …. 1.3.28 s 12 …. 1.1.17, 1.2.15 s 13 …. 1.2.88 s 14 …. 1.3.65 s 14(2) …. 1.2.89 s 15 …. 1.2.89 s 16 …. 1.3.7 s 18(1) …. 1.3.83 s 18(2a) …. 1.3.83 s 20(1)(d) …. 1.3.83 s 20(4) …. 1.3.55 s 21 …. 1.3.49 s 22(1)(a) …. 1.3.42 s 22(1)(b) …. 1.3.42 s 22(1)(c) …. 1.3.42 s 22(1)(d) …. 1.3.42 s 22(1)(e) …. 1.3.42 s 22(2) …. 1.3.43 s 23 …. 1.3.104 s 23(2)(f) …. 1.3.104 s 23(3) …. 1.3.94 s 25 …. 1.3.123 s 25(1) …. 1.3.123

s 25(2) …. 1.3.123 s 26 …. 1.3.139 s 27 …. 1.3.134, 1.4.153 s 27(1) …. 1.4.153 s 27(2) …. 1.3.131, 1.4.153 s 28 …. 1.4.163 s 30 …. 1.5.9, 1.5.19 s 31 …. 1.5.19 s 34 …. 1.5.30, 1.5.58 s 34(1)(a) …. 1.5.40 s 37(1)(a) …. 1.5.40, 1.5.43 s 38(1) …. 1.6.25 s 38(2)(d) …. 1.6.26 s 38(3) …. 1.6.27 s 39 …. 1.6.51 s 40(1) …. 1.6.63 s 40(2)(a) …. 1.6.63, 1.6.74 Sch 1 …. 1.1.32, 1.4.7, 1.4.67 Sch 1, cl 1 …. 1.1.32, 1.4.53 Sch 1, cl 3 …. 1.4.21, 1.4.41 Sch 1, cl 4 …. 1.4.31, 1.4.84 Sch 1, cl 5 …. 1.4.41 Sch 1, cl 6 …. 1.3.139 Sch 1, cl 7 …. 1.4.21 Sch 1, cl 10(1) …. 1.4.138 Sch 1, cl 10(2) …. 1.4.138 Sch 1, cl 12(1) …. 1.4.96

Sch 1, cl 12(2) …. 1.4.96 Sch 1, cl 13 …. 1.4.187 Sch 1, cl 13(1) …. 1.4.175 Sch 1, cl 13(1)(a) …. 1.4.187 Sch 1, cl 13(1)(b) …. 1.4.187 Sch 1, cl 14(b) …. 1.4.175 Sch 1, cl 16 …. 1.4.114 Sch 1, cl 16(1)(b) …. 1.4.114 Sch 1, cl 17 …. 1.4.196 Sch 1, cl 19 …. 1.1.32, 1.4.201 Sch 2 …. 1.1.20, 1.4.7

Tasmania Ombudsman Act 1978 s 32 …. 1.6.64 Personal Information Protection Act 2004 …. 1.5.50 s 17A …. 1.5.10, 1.5.20 s 17B …. 1.5.20 s 17C …. 1.5.31 s 17D …. 1.5.41 s 17E …. 1.5.59 Right to Information Act 2009 …. 1.1.3, 1.4.164, 1.4.197 Pt 3 …. 1.4.8 Pt 3, Div 1 …. 1.4.8, 1.4.22 Pt 3, Div 2 …. 1.4.8, 1.4.22 s 3(1) …. 1.1.15 s 3(1)(b) …. 1.2.16 s 3(2) …. 1.1.15, 1.2.16

s 3(3) …. 1.1.15, 1.2.16 s 3(4)(a) …. 1.2.46 s 3(4)(b) …. 1.2.46 s 5 …. 1.4.8 s 5(1) …. 1.2.66, 1.2.67, 1.3.17 s 6 …. 1.1.20, 1.2.33 s 6(1) …. 1.1.19, 1.2.33 s 6(1)(a) …. 1.1.20 s 7 …. 1.1.17, 1.2.16, 1.3.29 s 9 …. 1.2.33 s 10(1) …. 1.3.17 s 10(2) …. 1.3.17 s 11 …. 1.2.33 s 13(2) …. 1.2.90 s 13(3) …. 1.2.90 s 13(8) …. 1.2.91 s 14(1) …. 1.3.8 s 15(1) …. 1.2.91 s 16 …. 1.4.54 s 17 …. 1.3.49 s 18(1) …. 1.3.44–1.3.46 s 18(2) …. 1.3.56 s 18(4) …. 1.3.44 s 19(1) …. 1.3.84 s 20 …. 1.3.84 s 21 …. 1.3.29, 1.3.66 s 22(2) …. 1.3.105 s 26(1) …. 1.4.54

s 26(3)(a) …. 1.4.54 s 27 …. 1.4.68 s 27(1) …. 1.3.105 s 27(2) …. 1.4.68 s 28 …. 1.4.97 s 29(1)(a) …. 1.4.32 s 29(1)(b) …. 1.4.32 s 30 …. 1.4.85 s 31 …. 1.4.139 s 32 …. 1.4.97 s 33(1) …. 1.4.128 s 34(1) …. 1.3.124, 1.4.42 s 34(2) …. 1.4.42 s 34(3) …. 1.3.124 s 36 …. 1.3.140 s 36(1) …. 1.4.128 s 37(1) …. 1.3.132, 1.4.154 s 37(1)(a) …. 1.4.154 s 37(2) …. 1.3.132 s 39(1) …. 1.4.188 s 39(2)(a) …. 1.4.188 s 40 …. 1.4.115, 1.4.116 s 41 …. 1.4.176 s 41(2) …. 1.4.106 s 42(a) …. 1.4.201 s 43 …. 1.6.28, 1.6.52 s 43(1) …. 1.6.29

s 43(2) …. 1.6.29 s 43(3) …. 1.6.29 s 43(4)(a) …. 1.6.30 s 44 …. 1.6.52, 1.6.84 s 44(1) …. 1.6.64 s 47 …. 1.6.84 Sch 2 …. 1.4.22 Sch 2, cl 1(c) …. 1.4.22 Right to Information Regulations 2010 reg 4 …. 1.2.90 State Service Act 2000 …. 1.2.66

Victoria Civil and Administrative Tribunal Act 1998 s 148 …. 1.6.76 Freedom of Information Act 1982 …. 1.1.3, 1.4.198, 1.5.51, 1.5.60, 1.6.31, 1.6.85, 5.96 Pt IV …. 1.4.9 s 3(1) …. 1.1.11, 1.2.47 s 3(2) …. 1.2.47 s 5 …. 1.1.17, 1.4.9 s 5(1) …. 1.2.68, 1.2.69 s 6 …. 1.1.20 s 6(a) …. 1.1.19 s 6C(1)(b) …. 1.6.31 s 13 …. 1.1.17, 1.2.18 s 17(1) …. 1.2.92 s 17(2) …. 1.2.92

s 17(2A) …. 1.2.92 s 17(3) …. 1.2.93 s 18 …. 1.3.9 s 19(1) …. 1.3.18 s 21 …. 1.2.93 s 21(1) …. 1.3.30 s 21(2) …. 1.3.30 s 23(1) …. 1.3.45, 1.3.46 s 23(3) …. 1.3.45, 1.3.46 s 24 …. 1.3.49 s 24A …. 1.3.85 s 24A(1)(b) …. 1.3.85 s 25 …. 1.3.57 s 25A …. 1.3.85 s 26(1) …. 1.3.67 s 27(1) …. 1.3.106 s 28 …. 1.4.23, 1.4.55 s 28(1) …. 1.4.55 s 28(1)(a) …. 1.2.34 s 28(1)(b) …. 1.2.34 s 28(2) …. 1.4.55 s 28(3) …. 1.4.55 s 28(7)(a) …. 1.4.55 s 29 …. 1.3.125, 1.4.43 s 29A …. 1.4.33 s 29A(1) …. 1.4.33 s 30 …. 1.4.23, 1.4.69 s 31 …. 1.4.86

s 31(2) …. 1.4.86 s 31(2)(a) …. 1.4.86 s 31(2)(b) …. 1.4.86 s 31(2)(d) …. 1.4.86 s 32(1) …. 1.4.140 s 32(2) …. 1.4.140 s 33(1) …. 1.3.140, 1.4.129 s 33(2A) …. 1.3.140, 1.4.129 s 34 …. 1.3.133 s 34(1) …. 1.4.155 s 34(3) …. 1.3.133 s 34(4)(a)(i) …. 1.4.155 s 34(4)(a)(ii) …. 1.4.156 s 34(4)(b) …. 1.4.165 s 35 …. 1.4.189 s 36 …. 1.4.23 s 36(1)(a) …. 1.4.107, 1.4.177 s 36(1)(b) …. 1.4.116, 1.4.201 s 38 …. 1.1.24, 1.2.34, 1.4.98 s 39 …. 1.5.11, 1.5.21 s 40 …. 1.5.21 s 41 …. 1.5.32 s 42 …. 1.5.42 s 49A …. 1.6.53 s 49B(1) …. 1.5.53 s 49H(1) …. 1.6.33 s 49L(1) …. 1.6.53

s 50 …. 1.6.65 s 50(1)(b) …. 1.6.65 s 50(4) …. 1.4.202, 1.4.203, 1.6.65 s 61A(1) …. 1.6.34 s 61A(4) …. 1.6.35 s 61G(1) …. 1.6.36 s 61H …. 1.3.26 Freedom of Information Regulations 2009 …. 1.2.68 Privacy and Data Protection Act 2014

Western Australia Custodial Services Act 2003 s 47 …. 1.4.9 Freedom of Information Act 1992 …. 1.1.3, 1.1.20, 1.4.166, 1.6.86 s 3(1)(a) …. 1.1.16, 1.2.19, 1.2.48 s 3(2)(a) …. 1.1.16, 1.2.19, 1.2.48 s 3(2)(c) …. 1.2.48 s 6 …. 1.2.35 s 9 …. 1.2.70, 1.2.71, 1.4.10, 1.4.34 s 10 …. 1.1.17 s 10(1) …. 1.2.19 s 10(2)(a) …. 1.2.19 s 10(2)(b) …. 1.2.19 s 11(2) …. 1.2.95 s 12(1) …. 1.2.94 s 13(1)(a)(iii) …. 1.3.31 s 13(3) …. 1.2.95 s 15 …. 1.3.10

s 20(1) …. 1.3.86 s 23(1)(a) …. 1.3.31 s 24 …. 1.3.58 s 25 …. 1.3.49 s 26 …. 1.3.86 s 27 …. 1.3.46 s 27(2) …. 1.3.46 s 30(f) …. 1.3.106 s 30(h) …. 1.3.106 s 31(1) …. 1.3.97 s 31(2)(b) …. 1.3.97 s 32 …. 1.3.142 s 33 …. 1.3.134 s 39 …. 1.6.37 s 40(2) …. 1.6.38 s 40(3) …. 1.6.38 s 43(1) …. 1.6.39 s 45(1) …. 1.5.12, 1.5.22 s 45(2) …. 1.5.12 s 46 …. 1.5.22 s 47 …. 1.5.52 s 48 …. 1.5.33 s 48(1)(d) …. 1.5.43 s 49(2) …. 1.5.61 s 50 …. 1.5.43 s 65 …. 1.6.54 s 66(5) …. 1.6.54 s 66(6) …. 1.6.54

s 76(2) …. 1.6.54 s 85(1) …. 1.6.66 s 100(1) …. 1.3.68 Sch 1 …. 1.2.36, 1.4.10, 1.4.24, 1.4.70 Sch 1, cl 1 …. 1.2.36, 1.4.24, 1.4.56 Sch 1, cl 2 …. 1.4.44 Sch 1, cl 2(1) …. 1.3.126 Sch 1, cl 2(2) …. 1.3.126 Sch 1, cl 3 …. 1.4.24 Sch 1, cl 3(1) …. 1.4.130 Sch 1, cl 3(2) …. 1.4.130 Sch 1, cl 3(6) …. 1.4.130 Sch 1, cl 4 …. 1.4.157 Sch 1, cl 4(1) …. 1.4.157 Sch 1, cl 4(2)(a) …. 1.4.157 Sch 1, cl 4(2)(c) …. 1.4.157 Sch 1, cl 4(3) …. 1.4.157 Sch 1, cl 4(4) …. 1.4.157 Sch 1, cl 4(7) …. 1.4.157 Sch 1, cl 5 …. 1.4.87 Sch 1, cl 6 …. 1.4.24 Sch 1, cl 7(1) …. 1.4.141 Sch 1, cl 7(2) …. 1.4.141 Sch 1, cl 8 …. 1.4.190 Sch 1, cl 8(1) …. 1.4.190 Sch 1, cl 8(2) …. 1.4.190 Sch 1, cl 8(3) …. 1.4.190

Sch 1, cl 9(1) …. 1.4.178 Sch 1, cl 9(2) …. 1.4.178 Sch 1, cl 10(1) …. 1.4.108 Sch 1, cl 10(2) …. 1.4.108 Sch 1, cl 11 …. 1.4.117 Sch 1, cl 11(2) …. 1.4.117 Sch 1, cl 12 …. 1.4.199 Sch 1, cl 13(b) …. 1.4.99 Sch 1, cl 14 …. 1.2.36 Sch 1, cl 14(1) …. 1.4.99 Sch 2 …. 1.1.19, 1.1.20, 1.4.10 glossary …. 1.3.19 Parliamentary Commissioner Act 1971 s 23(1) …. 1.4.99 s 36 …. 1.2.37

Contents

Publisher’s Note Table of Cases Table of Statutes Part 1

Commentary Overview

Chapter 1

Introduction to Freedom of Information and Outline of Relevant Legislation Introduction Object and application of FOI legislation Secrecy

Chapter 2

Seeking Access under Freedom of Information Legislation Information that may be accessed General approach is broad What may be accessed: defining “agency” and “document” How to obtain access

Chapter 3

Giving Access under Freedom of Information Legislation Documents held with other agencies: Transferring a request for access Information stored on computers Circumstances in which access must be given Form of access

Circumstances in which access may be deferred Dealing with exempt matter or irrelevant material Who decides an application for access Circumstances in which access may be refused Where response to request would itself be an exempt document When access is refused Special procedures applying in some cases Chapter 4

Exceptions to Access under Freedom of Information Legislation Meaning of “exempt” Meaning of “conditionally exempt” Documents affecting national security Document affecting relations with the states Cabinet documents Internal working documents and deliberative processess Documents affecting law enforcement and public safety Documents which may disclose certain secret information Documents concerning financial or property interests of government Protections for agency procedures, including audits Documents affecting personal privacy Is legal professional privilege protected by the FOI legislation? Documents relating to business affairs Documents relating to research Documents affecting the national economy Material obtained in confidence Where disclosing documents could constitute contempt or breach of privilege

Are any other documents exempt? Chapter 5

Amendment of Records under Freedom of Information Legislation When government records about someone need amendment or annotation Applying for amendment When records may be amended Annotating records Documents held with other agencies: transferring a request When notification of a decision must be given

Chapter 6

Reviews and Appeals under Freedom of Information Legislation Internal review External review: the information commissioner and “IC reviewable decisions” External review: administrative tribunals Appealing to the courts Ombudsman’s role in review process

Part 2

Forms and Precedents

Precedent 1 Request for Access under the Freedom of Information Act 1982 (Cth) Precedent 2 Refusal of FOI Access Request for Practical Refusal Reason Precedent 3 Refusal of FOI Access in Case of Internal Working Document Precedent 4 Application for Amendment of Personal Records under Freedom of Information Act 1982 (Cth)

Precedent 5 Application for Internal Review of FOI Access Refusal Decision Precedent 6 Application for IC Review of FOI Access Refusal Decision Precedent 7 Application for Tribunal Review of FOI Access Refusal Decision Precedent 8 Appeal to the Federal Court Against IC Review of FOI Access Refusal Decision Part 3 Freedom of Information Act 1982 Part I—Preliminary Part II—Information publication scheme Part III—Access to documents Part IV—Exempt documents Part V—Amendment and annotation of personal records Part VI—Internal review of decisions Part VII—Review by Information Commissioner Part VIIA—Review by the Tribunal Part VIIB—Investigations and complaints Part VIII—Miscellaneous Part 4

Freedom of Information Guidelines: Part 5 Exemptions Part 5—Exemptions Introduction Documents exempt under Part IV Commonly used terms Documents affecting national security, defence or international relations (s 33) Cabinet documents (s 34) Documents affecting law enforcement and public safety (s 37) Documents to which secrecy provisions apply (s 38)

Documents subject to legal professional privilege (s 42) Documents containing material obtained in confidence (s 45) Parliamentary Budget Office documents (s 45A) Documents whose disclosure would be in contempt of the Parliament or in contempt of court (s 46) Documents disclosing trade secrets or commercially valuable information (s 47) Electoral rolls and related documents (s 47A) Index

[page 1]

Part 1 Commentary

[page 3]

Overview

Issues considered by this commentary Part 1 considers: 1.

entities and documents subject to freedom of information legislation;

2.

applying for access to documents (including appealing a refused application);

3.

responding to an application for access to documents; and

4.

applying for amendment of personal records.

This covers the requirements under the Freedom of Information Act 1982 (Cth). In addition, it considers issues relevant to: 1.

Freedom of Information Act 1989 (ACT);

2.

Information Act 2002 (NT);

3.

Government Information (Public Access) Act 2009 (NSW);

4.

Right to Information Act 2009 (Qld);

5.

Freedom of Information Act 1991 (SA);

6.

Right to Information Act 2009 (Tas);

7.

Freedom of Information Act 1982 (Vic); and

8.

Freedom of Information Act 1992 (WA).

On amendment of personal records also relevant are:

1.

Privacy and Personal Information Protection Act 1998 (NSW);

2.

Information Privacy Act 2009 (Qld);

3.

Personal Information Protection Act 2004 (Tas); and

4.

Privacy and Data Protection Act 2014 (Vic).

[page 5]

Chapter 1 Introduction to Freedom of Information and Outline of Relevant Legislation

INTRODUCTION 1.1.1 Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names. The focus of the title is on the Commonwealth legislation but state and territory provisions are also considered. These introductory notes draw attention to some of the chief points on the subject. 1.1.2 There are no prescribed forms as such but precedents which could usefully be employed are set out in part 2. 1.1.3 The Commonwealth Act is the Freedom of Information Act 1982 (Cth). See Part 3 of this commentary for that Act. The state and territory Acts are: Freedom of Information Act 1989 (ACT); Information Act 2002 (NT); Government Information (Public Access) Act 2009 (NSW); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA);

Right to Information Act 2009 (Tas); Freedom of Information Act 1982 (Vic); and Freedom of Information Act 1992 (WA). 1.1.4 The Commonwealth Act has served as the base model for all of these laws. It has, however, recently been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). Variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments. The particular state or territory law in question should be consulted if a state or territory matter is in issue, i.e. if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

[page 6]

OBJECT AND APPLICATION OF FOI LEGISLATION Commonwealth 1.1.5 The object of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) is “to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island” and to do so by requiring “agencies” to publish the information and providing for a right of access to documents: see Cth FOI Act s 3(1). By doing so, Parliament intends “to promote Australia’s representative democracy” by contributing towards increasing public participation in government processes and increasing scrutiny, discussion, comment on and review of the government’s activities: s 3(2). Ultimately this is based on the principle advanced by Ralph Nader that a “well informed citizenry is the lifeblood of democracy”.1 A right of access to information is a “public right”.2

1.1.6 An interpretation that best achieves the purpose of the Cth FOI Act, as with any Act, is to be preferred to any other interpretation.3 That purpose is, in a word, disclosure. 1.1.7

The Cth FOI Act applies to:

1.

“Agencies”, which mean a “department”, “prescribed authority” or “Norfolk Island authority”: for further consideration, see [292-35]; and

2.

Subject to certain qualifications and so far as the requested document relates to matters of an administrative nature: a.

courts (s 5);

b.

the Administrative Appeals Tribunal (“AAT”) (ss 4(1) and 6); and

c.

the Official Secretary to the Governor-General (s 6A).

1.1.8 For the purposes of the performance of a function, or the exercise of a power, under the Cth FOI Act regard must be had (Cth FOI Act: s 93A(2)) to any Guidelines issued by the Information Commissioner whose office is established by the Australian Information Commissioner Act 2010 (Cth) s 5. Guidelines, on various maters, revised in 2014, have been issued.4 See www.oaic.gov.au. An extract from those Guidelines appears at the end of the book. 1.1.9 Freedom of Information laws can supplement or substitute for the processes of discovery or subpoena in legal proceedings. Documents in government possession, even sometimes if the government is not a party to those proceedings, may not be able to obtained by either such process but may be able to be obtained under Freedom of Information legislation. [page 7]

States and territories 1.1.10 The state and territory laws are variously expressed in terms of their objects and application. 1.1.11 The provisions in the Australian Capital Territory and Victoria Acts, for example, are expressed “to extend as far as possible” the right of the community to access to information.5 This was the original formulation of the object of the Freedom of Information Act 1982 (Cth) in s 3(1). 1.1.12 The New South Wales Act, however, says that in order to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective, the object of the Act “is to open government information to the public”, inter alia, by giving members of the public an enforceable right to access such information.6 The Northern Territory Information Act 2002 (NT) is similarly expressed.7 1.1.13 The Queensland Act is more briefly expressed: the primary object of the Right to Information Act 2009 (Qld) is to provide for “a right of access to information in the government’s possession or under the government’s control” unless contrary to the public interest.8 1.1.14 On the other hand, the South Australian Freedom of Information Act 1991 (SA) says that the objects of that Act include promoting openness in government and that one of the means of achieving this is by “conferring on each member of the public … a legally enforceable right to be given access to documents held by government” subject to restrictions consistent with the public interest.9 1.1.15 The Tasmanian Act says that its object is to improve democratic government in Tasmania, and that this “object is to be pursued by giving members of the public the right to obtain information held by public authorities and Ministers and also a “right to obtain information about the operations of government”.10

1.1.16 The objects of the Western Australia Freedom of Information Act 1992 (WA) include enabling the public to participate more effectively in governing Western Australia and this is to be achieved, inter alia, “by creating a general right of access to state and local government documents”.11 1.1.17 There is also a wide divergence among state and territory laws as to those to whom or which the laws apply. Usually a state or territory law will apply to an “agency” or a Minister12 but the agency may be described in the law as a public sector organisation13 [page 8] or public authority14 or its definition may indicate a wide range of bodies or individuals is included.15 Sometimes courts are specifically included.16

Exempted from the legislation The Freedom of Information Act 1982 (Cth) (Cth FOI Act) provides for various exemptions from its provisions, as do state and territory laws. It is vital in any particular case to establish whether or not the body or agency concerned is within the legislation or not.

Entirely exempt organisations and documents: Commonwealth 1.1.18 Certain organisations and documents are entirely exempt from the provisions of the Cth FOI Act, such as the following: Certain bodies and agencies: Certain bodies or agencies are excluded generally from the provisions of the Cth FOI Act: see s 7(1) and Pt I Div 1 of Sch 2. These include the Auditor-General, the Australian

Government Solicitor, and the Australian Security Intelligence Organisation (“ASIO”). Documents relating to commercial activities: Certain persons, bodies and Departments are excluded in relation to certain types of documents: see s 7(2) and Pt II Div 1 of Sch 2. For example, the Attorney-General’s Department is excluded in relation to documents in respect of any “commercial activities” it undertakes (for the meaning of “commercial activities” see s 7(3)). Certain bodies corporate are also exempted with respect of documents in relation to their commercial activities: s 7(2AA). Such bodies include those set up under the Wine Australia Corporation Act 1980 (Cth) and Dairy Produce Act 1986 (Cth). “Intelligence agency documents”: By s 7(2A) agencies are exempt from the operation of the Cth FOI Act in relation to “intelligence agency documents” that have originated with, or been received from, ASIO: s 7(2A)(a)(ii). Ministers are also exempt from the operation of the Cth FOI Act in relation to an intelligence agency documents and documents containing a summary of or an extract from an intelligence agency document: s 7(2B). Court documents: The Cth FOI Act does not apply to any request for access to a document of a court (s 5) or the AAT (ss 4(1) and 6) unless it relates to a matter “of an administrative nature”: see [292-5] Even if a document deals only incidentally with some administrative matters, that does not necessarily detract from its overall quality as a document pertaining to the judicial role of a court rather than to its administrative organization: the expression “matters of an administrative nature” focuses on the general nature of a document rather than on the presence in the [page 9]

document of any administrative features whatever, however insignificant they may be in relation to the document’s general nature.17 Official Secretary to the Governor-General: The Official Secretary to the Governor-General is not obliged to grant access to a document unless it, too, relates to matters of an administrative nature.18

Entirely exempt organisations and documents: States and territories 1.1.19

In relation to certain bodies and agencies:

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) s 6(2) excludes an agency in relation to health records of the human rights commission regarding health complaints and also excluded (s 6(3)) is the human rights commission in relation to documents created or received by the commission relating to a complaint made under s 18 of the Health Records (Privacy and Access) Act 1997 (ACT). Northern Territory: The Information Act 2002 (NT) by s 5(5) does not apply to: a court in relation to its judicial functions; a tribunal in relation to its decision-making functions; a coroner; or a magistrate or justice in relation to a preliminary examination. New South Wales: The Government Information (Public Access) Act 2009 (NSW) Sch 4(3) excludes the following (amongst others) from the definition of “public office”: the office of Governor or Lieutenant-Governor of the state; the office of a Minister of the Crown; and

the office of a judicial officer of a court. A “public office” generally refers to an office established or continued for a public purpose: Sch 4(1). Queensland: Excluded from the Right to Information Act 2009 (Qld) Sch 2 is: the Governor; the Assembly; a court in relation to the court’s judicial functions; a tribunal in relation to its judicial or quasi-judicial functions; and other specified entities. South Australia: The Freedom of Information Act 1991 (SA) (see ss 5A, 6(1)(a)) does not apply to: the Parliament or an officer of the Parliament; a court or a judicial officer of a court. [page 10] Tasmania: The Right to Information Act 2009 (Tas) s 6(1) excludes: information in the possession of the Governor; a court; a tribunal; a judge or a magistrate; and amongst others, the Parliament. Victoria: The Freedom of Information Act 1982 (Vic) s 6(a) excludes all courts in relation to their judicial functions.

Western Australia: An “exempt agency” under the Freedom of Information Act 1992 (WA) Sch 2 includes: the Governor; the Houses of the Parliament; the Auditor-General; and certain others. 1.1.20

In relation to documents relating to commercial activities:

Australian Capital Territory: Under the Freedom of Information Act 1989 (ACT) s 6(1) a territory owned corporation (or a subsidiary) within the meaning of the Territory-owned Corporations Act 1990 (ACT) is exempt from the act’s operation in relation to documents in respect of its competitive commercial activities. Other jurisdictions: The remaining state and territory laws do not specifically exclude documents concerning commercial activities. However, such documents may fall under some other exemption such as internal working documents (as to which see [292-125]). “Intelligence agency documents”: There is no direct equivalent of s 7(2A) of the Cth FOI Act in state or territory laws. However, by s 47 of the Information Act 2002 (NT) information is exempt if it originated with a body established under Commonwealth law and that body (eg ASIO) would not be required to disclose that information under the Cth FOI Act. ASIO documents (and other intelligence documents) are excluded under Sch 1 of the Right to Information Act 2009 (Qld). Certain intelligence agencies are exempt under the Freedom of Information Act 1991 (SA) under Sch 2. Court documents: Tribunal documents not relating to matters of an administrative nature are exempt under the Freedom of Information Act 1989 (ACT) s 5. Courts in relation to their judicial functions and a tribunal in relation to its decision-making functions are exempt under

Information Act 2002 (NT) s 5. Courts in relation to judicial functions are entirely excluded under the Government Information (Public Access) Act 2009 (NSW) Sch 2. Courts in relation to the exercise of such functions, and a tribunal in relation to the exercise of its judicial or quasi-judicial functions are excluded under the Right to Information Act 2009 (Qld) Sch 2. Under the Freedom of Information Act 1991 (SA) s 6 neither a court nor a tribunal is regarded as part of an agency liable to grant access to documents. Unless it relates to information concerning its administration, the Right to Information Act 2009 (Tas) s 6 does not apply to information held by a court of tribunal. The Freedom of Information Act [page 11] 1982 (Vic) s 6 does not apply to a court or to the holder of judicial office in relation to the exercise of judicial functions. The Freedom of Information Act 1992 (WA) does not include courts or tribunals among its exempt agencies. Governor: No office of Governor exists in either the Australian Capital Territory or the Northern Territory. Neither the office of Governor nor that of Lieutenant-Governor is a public office for the definition of “agency” in the Government Information (Public Access) Act 2009 (NSW) (see s 4 Sch 2). The Right to Information Act 2009 (Qld) does not apply to the Governor of Queensland (see Sch 2). The Governor is not excluded under the Freedom of Information Act 1991 (SA) or under the Freedom of Information Act 1982 (Vic) but is excluded under the Right to Information Act 2009 (Tas) s 6(1)(a) as well as under the Freedom of Information Act 1992 (WA) (see Sch 2).

Other types of exemptions

1.1.21 Exemptions entirely from the provisions of the FOI Act (such as the exemptions set out above) are to be distinguished from other types of exemptions, such as: documents which may be exempt from access under the Cth FOI Act or under state or territory laws: see paras 4.1–4.10; documents which may be conditionally exempt from access under the Cth FOI Act or under state or territory laws: see paras 4.11–4.24; documents to which access is excluded (see 2.21–2.38). Note that exclusion from access is provided for separately and in addition to exemption from access. Access is excluded if something that would otherwise be accessible is excluded from being accessible. Some documents, irrespective of whether they are accessible, are exempted from access. documents deemed not to be a “document of an agency” (see 2.21–2.38); and documents excluded for reasons of secrecy (see paras 1.24–1.26).

SECRECY Commonwealth 1.1.22 Certain documents are exempt from the Freedom of Information Act 1982 (Cth) (Cth FOI Act) if: 1)

their disclosure, or disclosure of the information they contain is prohibited under a legislative provision specified in s 38;

2)

their disclosure, or disclosure of the information they contain, is prohibited under a legislative provision specified in Sch 3, such as: a)

Child Support (Registration and Collection) Act 1988 (Cth) s 16(2)(b);

b)

Crimes (Taxation Offences) Act 1980 (Cth) s 4;

c)

Intelligence Services Act 2001 (Cth) s 41(1); and [page 12]

d)

Telecommunications (Interception and Access) Act 1979 (Cth) ss 63 and 133; or

e)

section 38 itself is expressly made to apply under the Cth FOI Act or some other Act.

1.1.23 These “secrecy” exemptions only apply if the specific recipient of the information would be prohibited by the relevant legislation: s 38(1A).

States and territories 1.1.24 State and territory laws also contain secrecy provisions in several instances. Under the Information Act 2002 (NT) s 48 information is exempt for an applicant if its disclosure would be an offence against a provision of any of a number of Acts specified in Sch 1. The Government Information (Public Access) Act 2009 (NSW) makes provision for overriding secrecy laws. See s 11 Sch 1. The Freedom of Information Act 1982 (Vic) s 38 specifically refers to documents which prohibit persons from disclosing information and provides that such documents are exempt.

1.

R Nader, “Freedom of Information: the Act and the Agencies” (1970) 5 Harvard Civil Rights — Civil Liberties Law Review 1.

2.

Luck v Independent Broad-based Anti-Corruption Commission [2013] VCAT 1805 at [37].

3.

Luck v Independent Broad-based Anti-Corruption Commission [2013] VCAT 1805 at [37]; Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103; [2011] QSC 285; BC201107524 at [25].

4.

For a recent case see Spragg and Chief Executive Officer of Customs [2014] AATA 667 (public interest).

5.

Freedom of Information Act 1989 (ACT) s 2(1); Freedom of Information Act 1982 (Vic) s 3(1).

6.

Government Information (Public Access) Act 2009 (NSW) s 9.

7.

Information Act 2002 (NT) s 3(1).

8.

Right to Information Act 2009 (Qld) s 3(1).

9.

Freedom of Information Act 1991 (SA) s 3(1), (2)(b).

10. Right to Information Act 2009 (Tas) s 3(1), (2), (3). 11. Freedom of Information Act 1992 (WA) s 3(1)(a), (2)(a). 12. Government Information (Public Access) Act 2009 (NSW) s 9; Right to Information Act 2009 (Qld) s 23; Freedom of Information Act 1991 (SA) s 12; Freedom of Information Act 1982 (Vic) s 13; Freedom of Information Act 1992 (WA) s 10. 13. Information Act 2002 (NT) s 18(1). 14. Right to Information Act 2009 (Tas) s 7. 15. Freedom of Information Act 1991 (SA) s 4 (“agency”); Freedom of Information Act 1982 (Vic) s 5 (“agency”). 16. Government Information (Public Access) Act 2009 (NSW) ss 4(1), 9; Information Act 2002 (NT) s 5(1)(i). 17. Re Simring and High Court of Australia (2006) 44 AAR 103; [2006] AATA 849; BC200608023 at [19]. 18. See B v Office of the Official Secretary to the Governor-General [2011] AI Cmr 6. See also Re Kline and Official Secretary to the Governor-General (2012) 127 ALD 639; [2012]AATA 247; BC201202512.

[page 13]

Chapter 2 Seeking Access under Freedom of Information Legislation

INFORMATION THAT MAY BE ACCESSED In seeking access it is important always to be precise about the information which is being sought. A request for access to information in a document is liable to be rejected or returned if the request is vague or ill defined. It may be necessary to be precise about dates or the names of individuals or about the exact position(s) they occupy in an organisation. It will also be necessary to be very exacting in the description of the document(s) containing the information sought Requests for access to voluminous documents should, as a rule, be avoided. Well targeted requests to quite specific documents are more likely to be effective.

Commonwealth 1.2.1 The Freedom of Information Act 1982 (Cth) (Cth FOI Act) provides every person with a legally enforceable right to obtain access to (s 11(1)): a “document of an agency” (other than an exempt document); and an “official document of a Minister” (other than an exempt document). This right, however, may only be exercised in accordance with the Cth FOI Act.

1.2.2

A person’s right of access is not generally affected by either (s 11(2)): the reasons the person gives for seeking access; or the agency’s or the Minister’s belief as to what the person’s reasons for seeing access are.

1.2.3 On the meaning of “exempt” documents see Chapter 4, paragraphs 4.1–4.10. The Cth FOI Act distinguishes between exempt documents and conditionally exempt documents. On the meaning of conditionally exempt documents see Chapter 4, paragraphs 4.11–4.24. 1.2.4 On the meaning of “agency”, “document” and “document of an agency”, see [292-35].

States and territories 1.2.5 State and territory laws are broadly similar to the Cth FOI Act, but do not distinguish between exempt documents and conditionally exempt documents. [page 14]

Australian Capital Territory 1.2.6 By the Freedom of Information Act 1989 (ACT) every person is given a legally enforceable right to obtain access (in accordance with the Act, and subject to it) to: a document of an agency, other than an exempt document; and an official document of a Minister, other than an exempt document: s 10.

Northern Territory 1.2.7

The Information Act 2002 (NT) gives every person an enforceable

right to access “government information” other than another person’s personal information: ss 15 and 16(a). By s 18(1) any person may apply to a public sector organisation for government information held by the organisation including for personal information relating to that person. 1.2.8 “Government information” is defined as a record held by or on behalf of a public sector organisation: s 4. On the meaning of “public sector organisation” and “record” see [292-35]. 1.2.9 The Act draws a distinction between information that is exempt because it is not in the public interest to disclose it (s 44) and information that is exempt only if it can be shown in the particular case that it is not in the public interest to disclose it (s 50).

New South Wales 1.2.10 The Government Information (Public Access) Act 2009 (NSW) requires government information held by an agency to be that agency’s open access information which must be made publicly available: s 18. By s 12(1) of the Act there is declared to be a general public interest in favour of the disclosure of government information. 1.2.11 “Government information” means information contained in a record held by an agency: s 4(1). On the meaning of “record”, see [292-35]. 1.2.12 Under s 9(1), a person who makes an access application for government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure. 1.2.13 There is, thus, in NSW, in summary, a presumption in favour of disclosure of information sought unless there is an overriding public interest consideration against disclosure.1

Queensland 1.2.14 The Right to Information Act 2009 (Qld) specifies that a person has a right to be given access to documents of an agency or a Minister: s 23(1).

This right is expressed to be “subject to” the Act. By s 44(1) there is a prodisclosure bias expressly favoured — that is, access should be given unless doing so would, on balance, be contrary to the public interest. [page 15]

South Australia 1.2.15 No such pro-disclosure bias is to be found specified in the Freedom of Information Act 1991 (SA). But one of the objects of that Act is to promote openness in government (s 3(1)(a)) and one of the ways intended to achieve this is by ensuring that information concerning the operations of government is made readily available (s 3(2)(a)). Another way is to confer on each member of the public a legally enforceable right to be given access to documents held by the government, subject only to such restrictions as are consistent with the public interest: s 3(2)(b). By s 12 of the Act every person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act.

Tasmania 1.2.16 The Right to Information Act 2009 (Tas) is similarly expressed. One of the objects of that Act is to increase the ability of the people of Tasmania to participate in their governance: s 3(1)(b). This object is pursued by giving members of the public the right to obtain information held by public authorities and Ministers and about the operations of government: s 3(2) and (3). By s 7 of the Act a person has a legally enforceable right to be provided information in the possession of a public authority or a Minister unless that information is exempt. 1.2.17 2.67.

The meaning of “public authority” is discussed under “agency”: see

Victoria 1.2.18 The Freedom of Information Act 1982 (Vic) s 13 gives every person, subject otherwise to that Act, a legally enforceable right to obtain access2 to a document of an agency or an official document of a Minister — in either case, other than an exempt document.3 The Act specifies that it is Parliament’s intention that the Act be interpreted so as to further the object of ensuring community access to information.

Western Australia 1.2.19 The Freedom of Information Act 1992 (WA) specifies in s 10(1) that a person has a right to be given access to documents of an agency (other than an exempt agency). This, in accordance with s 3(2)(a), achieves one of the objects of the Act; namely, to enable the public to participate more effectively in governing the state: s 3(1)(a). As provided by the Cth FOI Act, this Act specifies that a person’s right to be given access is not affected by either any reasons the person gives for wishing to obtain access or an agency’s belief as to a person’s reasons for wishing to obtain access: s 10(2)(a) and (b).

Excluded documents 1.2.20 Access to documents, or disclosure, is the statutory imperative, subject to exclusions and exemptions set out in the various laws. [page 16]

Commonwealth 1.2.21 The legally enforceable right of access given by s 11(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) (see [292-20]) is expressed to be subject to the Act. Correspondingly, the Act excludes access to certain documents: see ss 11(1) and 12. Note that exclusion from access is

provided for separately and in addition to exemption from access. Access is excluded if something that would otherwise be accessible is excluded from being accessible. Some documents, irrespective of whether they are accessible, are exempted from access. 1.2.22

Examples of excluded documents include:

any document which is within the open access period under the Archives Act 1983 (Cth), unless it contains personal information (including personal information about a deceased): s 12(1)(a) of the Cth FOI Act; and any document available for purchase by the public in accordance with arrangements made by an agency: s 12(1)(c) of the Cth FOI Act. The word “available” means readily available or actually able to be acquired.4 1.2.23 Documents in certain institutions are deemed not to be a “document of an agency” under the Cth FOI Act: see ss 4(1) and 13(1). For example, a document in the memorial collection (within the meaning of the Australian War Memorial Act 1980 (Cth)) is not a document of an agency: s 13(1)(a) of the Cth FOI Act. 1.2.24 Island.

Special provision is made in s 12(2) of the Cth FOI Act for Norfolk

States and territories Australian Capital Territory 1.2.25 Several kinds of documents are excluded from the right to access information under the Freedom of Information Act 1989 (ACT). These include: documents containing a list of housing assistance properties identified as housing assistance properties (s 6A(1)); documents open to public access as part of a public register or otherwise

for which a fee is payable for access (s 11(1)(a)); any document available for purchase by the public (s 11(1)(b)); library material maintained for reference purposes (s 11(l)(c)); and Cabinet notebooks: s 11(3).

Northern Territory 1.2.26

The Information Act 2002 (NT) excludes:

publications available for purchase by the public and material available to the public for reference purposes: s 12(2)(a) and (b); and archival information available to the public: s 12(3)(c). [page 17] 1.2.27 The Chief Minister is able to issue an exemption certificate certifying that government information in the certificate is exempt: s 60(1).

New South Wales 1.2.28 Under the Government Information (Public Access) Act 2009 (NSW) s 14 it must be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1. This includes information in documents (which thus become excluded) in the overriding secrecy laws set out in cl 1 of the schedule (such as the Assisted Reproductive Technology Act 2007 (NSW) Pt 3 (central register)). 1.2.29 Cabinet information contained in documents (cl 2) and Executive Council information (cl 3) is also excluded.

Queensland 1.2.30

The Right to Information Act 2009 (Qld) does not, by virtue of s 11,

apply to any document mentioned in Sch 1. These include documents of an intelligence agency and any document created under the Terrorism (Preventative Detention) Act 2005 (Qld): see cll 1 and 2 of the Schedule. 1.2.31

Other documents also are excluded, including:

any document received by the Queensland Integrity Commissioner under the Integrity Act 2009 (Qld) Ch 3; and documents created or received by the Prostitution Licensing Authority for the purposes of the Prostitution Act 1999 (Qld): see cll 6 and 7 of the Schedule.

South Australia 1.2.32 The South Australian Act provides for exempt documents in Sch 1. This accords with the definition of “exempt document” in s 4. Exempt documents include cabinet documents (cl 1), public documents in public libraries or archival collections (cl 19) and many others.

Tasmania 1.2.33 The Right to Information Act 2009 (Tas) excludes information (which may be in documentary form) in the possession of various persons or bodies: see s 6. These include the Integrity Commission, the Ombudsman, the Auditor-General and the Health Complaints Commissioner. However, such information is not excluded if it relates to the administration of the public authority concerned: s 6(1). Under s 9 a person is not entitled to apply for information which is already otherwise available. Provision is made in s 11 for archival information.

Victoria 1.2.34 The Freedom of Information Act 1982 (Vic) excludes various documents, including cabinet documents (s 28(1)(a)), notes prepared for a

Minister (s 28(1)(b)), and documents to which secrecy provisions of enactments apply: see s 38. [page 18]

Western Australia 1.2.35 The Freedom of Information Act 1992 (WA) s 6 does not provide access to documents that are already available to the public. 1.2.36 Various documents which would contain exempt matter are also excluded in Sch 1 to the Act. Exempt matters include certain information about cabinet and the executive council (cl 1) as well as information which is protected by certain specified statutory provisions (see cl 14) such as s 23(1) of the Parliamentary Commissioner Act 1971 (WA). 1.2.37 Under s 36 the Premier may sign an exemption certificate stating that a document mentioned in the certificate contains exempt matter under a specified provision of the Schedule.

GENERAL APPROACH IS BROAD 1.2.38 The purpose of all Freedom of Information laws is to enable disclosure thereby to provide for the better functioning of democratic government. They relate to freedom of information — not freedom from information.

Commonwealth 1.2.39 Section 3A of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) indicates a broad approach to be adopted by Ministers and agencies under the Cth FOI Act. It applies if a Minister or an officer of an agency has power to publish or give access to information or a document (including an

exempt document) otherwise than under the Cth FOI Act: s 3A(1). When s 3A applies, Parliament does not intend either to limit or to prevent or discourage the exercise of that Minister’s or officer’s power: s 3(2). This is so whether or not access to the information or document has been requested under s 15 of the Cth FOI Act: s 3(2)(b).

States and territories 1.2.40 The various laws of the states and territories also indicate a broad approach should be adopted to the question of access. In some instances this is made explicit.

Australian Capital Territory 1.2.41 The Freedom of Information Act 1989 (ACT) s 2(2) says that the provisions of that Act must be interpreted so as to further the objects of the Act (the principal one being is to extend as far as possible the right of access) and to ensure the discretions conferred by the Act are exercised as far as possible to facilitate the disclosure of information.

Northern Territory 1.2.42 The Information Act 2002 (NT) s 3(2) says it is intended to strike a balance between competing interests by giving members of the community a right of access to government information with limited exceptions and exemptions so as to prevent any prejudicial effect on the public interest. [page 19]

New South Wales 1.2.43 The Government Information (Public Access) Act 2009 (NSW) s 3(2)(a) says it is Parliament’s intention that the Act be interpreted and applied so as to further its object. This includes (s 3(1)) opening government

information to the public. In s 3(2)(b) the Act says that the discretions it gives are to be exercised, as far as possible, to facilitate and encourage access to government information.

Queensland 1.2.44 The Right to Information Act 2009 (Qld) says that its primary object is to give a right of access to information in the government’s possession or control unless contrary to the public interest. See s 3(1). Then it says that it must be applied and interpreted to further this primary object. See s 3(2).

South Australia 1.2.45 In similar vein to Queensland, the Freedom of Information Act 1991 (SA) s 3A(1)(a) says that it is the intention of the Parliament that the Act should be interpreted and applied so as to further the objects of the Act. They include promoting openness in government: see s 3(1)(a). By s 3A(1)(b) the Act says it is the intention of the Parliament that a person or body exercising an administrative discretion under the Act must exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing an individual’s right to privacy.

Tasmania 1.2.46 The Right to Information Act 2009 (Tas) is similarly expressed to South Australia. By s 3(4)(a) it is declared to be Parliament’s intention to further the object set out in the Act (to improve democratic government in Tasmania). Section 3(4)(b) says it is Parliament’s intention that discretions conferred by the Act be exercised so as to facilitate and promote the provision of the maximum amount of official information.

Victoria 1.2.47 The Freedom of Information Act 1982 (Vic) says in s 3(1) that the object of the Act is to extend as far as possible the right of the community to

access to information in government possession. Section 3(2) says it is Parliament’s intention that the Act be interpreted so as to further this object and that any discretion conferred by the Act must be exercised so as to facilitate and promote the disclosure of information. It has been specifically held it is proper to give the relevant provisions of the Act “a construction which would further, rather than hinder, free access to information”.5 [page 20]

Western Australia 1.2.48 The Freedom of Information Act 1992 (WA) says (s 3(1)(a)) one of the objects of the Act is to enable the public to participate more effectively in governing the state. By s 3(2)(a) this is achieved by creating a general right of access to state and local government documents. Also, by s 3(2)(c), this is to be achieved by requiring that certain documents concerning state and local government operations be made available to the public.

WHAT MAY BE ACCESSED: DEFINING “AGENCY” AND “DOCUMENT” 1.2.49 As mentioned above it is vital to ensure that the body or organisation concerned in amenable to Freedom of Information legislation.

Commonwealth 1.2.50 Section 4(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) defines an “agency” as: a department; a prescribed authority; or a Norfolk Island authority.

1.2.51 “Department” means a Department of the Australian Public Service corresponding to a Department of state of the Commonwealth. “Prescribed authority” is defined to include a body corporate, or an unincorporated body, established for a public purpose by or in accordance with the provisions of an enactment or an Order in Council excluding certain named entities.6 These entities include an incorporated company or association or a Royal Commission. They also include NBN Co. 1.2.52 A “document” is also defined in s 4(1) of the Cth FOI Act. A document includes: any paper or other material on which there is writing; a map, plan, drawing or photograph; any article on which information has been stored or recorded, either mechanically or electronically; and any other record of information. 1.2.53 However, the definition of “document” expressly excludes Cabinet notebooks. A “Cabinet notebook” is a notebook or other like record containing notes of discussions or deliberations taking place in a Cabinet meeting if they were made by or under the authority of Cabinet’s Secretary. 1.2.54 A “document of an agency” includes a document in the possession of an agency whether created in or received by the agency. [page 21]

States and territories Australian Capital Territory 1.2.55 In the Freedom of Information Act 1989 (ACT) an “agency” is defined as an administrative unit or a prescribed authority (see s 3 and the

Dictionary). The definition of a “prescribed authority” includes (see further s 3; Dictionary (“prescribed authority”)): a body corporate, or an unincorporated body, established for a public purpose under an enactment; any other body (incorporated or not) of a specified kind declared by the regulations to be a prescribed authority. At present, ACTTAB is the only authority so prescribed (see Freedom of Information Regulation 1991 (ACT) s 2 and Sch 1); and any territory-owned corporation (or subsidiary) within the meaning of the Territory-owned Corporations Act 1990 (ACT). 1.2.56 Under the Act a “document” means a document in the possession of an agency whether created in it or received by it: s 3.

Northern Territory 1.2.57 The Northern Territory uses the concepts of a “public sector organisation” and a “record”, rather than an agency and a document. 1.2.58 The Information Act 2002 (NT) includes as a “public sector organisation” (see s 5(1)): an agency; a government business division (for personal information only); a government-owned corporation (for personal information only); a local authority; a statutory corporation; the Northern Territory police force; a court or tribunal (except in relation to the judicial function of the former and decision-making functions of the latter) (see s 5(5)); and any person or body declared by regulation to be a public sector organisation.

1.2.59 A “record” means recorded information in any form (including data in a computer system) that is required to be kept by a public sector organisation as evidence of its activities or operations: s 4.

New South Wales 1.2.60 In New South Wales an “agency” includes a government department; a Minister; a public authority; a public office; a local authority; and a court: see Government Information (Public Access) Act 2009 (NSW) s 4(1). A “public authority” includes any statutory body representing the Crown and any body established for a public purpose under legislative instrument: s 4(2); Sch 4 cll 1 and 2. A “public office” includes an office to which an appointment is made by the Governor that is declared by the regulations to be a public office: s 4(2); Sch 4 cll 1 and 3. A “court” includes a tribunal or magistrate: s 4(2); Sch 4 cl 1. [page 22] 1.2.61 The New South Wales legislation refers to record, rather than a document. A “record” means any document or other source of information compiled, recorded, or stored in written form or by electronic process or in any other manner: s 4(2); Sch 4 cl 10(1).

Queensland 1.2.62 In the Right to Information Act 2009 (Qld) an “agency” includes a department; a local government; a public authority; a government-owned corporation or a subsidiary of one: s 14(1). A “public authority” includes various entities, such as an entity established by Act for a public purpose or created by the Governor-in-Council: s 16. Various entities are excluded under Sch 2. 1.2.63

Access is given under the Act to documents of an agency or of a

Minister: see s 23(1). Schedule 1 excludes various documents and Sch 3 exempts certain information contained in documents, but the word “document” is not itself defined.

South Australia 1.2.64 By the Freedom of Information Act 1991 (SA) an “agency” is defined as including a Minister; a person holding statutory office; an administrative unit of the public service; and a council: s 4(1).

Tasmania 1.2.65 The Right to Information Act 2009 (Tas) uses the concepts of a “public authority” and “information” rather than an agency and a document. 1.2.66 A “public authority” under the Act includes an agency within the meaning of the State Service Act 2000 (Tas); a council; a statutory authority; and a body established under an Act for a public purpose: s 5(1). 1.2.67 “Information” means any thing by which words, figures, letters or symbols are recorded and includes a map, plan, graph, drawing, painting, recording and photograph and anything else in which information is embodied so as to be capable of being reproduced: s 5(1).

Victoria 1.2.68 Under the Freedom of Information Act 1982 (Vic) an “agency” means a government department; a council; or a prescribed authority: s 5(1). A “prescribed authority” includes a body corporate established for a public purpose; a school council; and a statutory body declared by regulations to be a prescribed authority: s 5(1). The prescribed authorities currently include such bodies as the Firearms Appeals Committee and the Psychosurgery Review Board: Freedom of Information Regulations 2009 (Vic) reg 5. 1.2.69 A “document” under the Act includes, in addition to a document in writing, any book, map, plan, graph or drawing and any photograph or device

in which sounds or other data are embodied so as to be capable of being reproduced: s 5(1). [page 23]

Western Australia 1.2.70 Under the Freedom of Information Act 1992 (WA) an “agency” means a Minister or a public body or office: s 9. A “public body or office” includes a department of the public service; a body or office established for a public purpose under a written law; and a body or office established by the Governor or a Minister: s 9. 1.2.71 A “document” under the Act means any record or part of a record or copy: s 9. A “record” means any record of information however recorded and includes any paper on which there is writing and any article on which information has been stored or recorded: s 9.

HOW TO OBTAIN ACCESS 1.2.72

Requests should be succinct and well defined.

Commonwealth 1.2.73 A person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to it: s 15(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). The request must (see s 15(2)): be in writing; state that it is one made for the purposes of the Cth FOI Act; provide such information concerning the document as is reasonably

necessary to enable a responsible officer of the agency or the Minister to identify it; and give details of how notices may be sent to the applicant (eg email address). 1.2.74 The request for access may be sent in a number of ways: see s 15(2A). If any agency receives a request that does not conform to one of these ways, it has a duty to assist the person to ensure his or her request does comply with requirements: s 15(3). 1.2.75 Receipt of a request must be acknowledged within 14 days: s 15(5) (a). No later than 30 days after receiving a request, the agency or Minister must take all reasonable steps to ensure the applicant is notified of a decision: s 15(5)(b). 1.2.76 In relation to personnel records, a person can only apply under s 15 for access if the conditions specified in s 15A(2) are met. “Personnel records” are records containing personal information about a person for personnel management purposes: s 15A(1). 1.2.77

See PR 1 (request for access).

1.2.78 Guidance on obtaining access may also be derived from the paragraphs under the heading “Giving access under FOI legislation”, including in relation to: circumstances when access must be given; form of access; circumstances in which access may be refused; and what to expect if access is refused. [page 24]

States and territories Australian Capital Territory 1.2.79 The Freedom of Information Act 1989 (ACT) specifies that a person may request access to a document by applying in writing: s 14(1). The request must provide sufficient detail to identify the document: s 14(2). An agency must take reasonable steps to assist a person to make a request in the manner specified: s 14(3)(a). The applicant must be notified of a decision on the request as soon as practicable but no later than 30 days after the request is received: s 18(1)(d).

Northern Territory 1.2.80 The Information Act 2002 (NT) requires an application for access to be in writing and to specify (see s 18(2)): the name of the applicant; an address for return correspondence; and sufficient details to identify the information to which access is sought. 1.2.81 Before an application is accepted, the public sector organisation in question must satisfy itself as to the identity of the applicant: s 18(3). A fee must be paid: s 18(2A). 1.2.82 The application must then be considered and a decision notified within 30 days: s 19(1).

New South Wales 1.2.83 The Government Information (Public Access) Act 2009 (NSW) requires an application for access to (see s 41(1)): be in writing (sent to or lodged at an office of the agency concerned); state a postal address for correspondence; clearly indicate that it is an access application made under the Act;

be accompanied by the relevant fee; and include such information as is reasonably necessary to enable the information sought to be identified. 1.2.84 An application may include any submissions about public interest considerations for the relevant agency to take into account: s 42(a). 1.2.85 The agency must make a decision on the application, and give notice of it, within 20 days after the application is received but this period can be extended for up to 10 or 15 days: s 57(1), (2).

Queensland 1.2.86 24):

By the Right to Information Act 2009 (Qld) the application must (s

be in the approved form; be accompanied by the application fee; [page 25] state a return address; give sufficient information to identify the document; and (in the case of access to documents containing personal information) include evidence of identity. 1.2.87

The processing period for an application is 25 business days: s 18.

South Australia 1.2.88 Under the Freedom of Information Act 1991 (SA) an application must (s 13): be in writing;

specify that it is made under that Act; be lodged at an office of the agency concerned; specify a return address; be accompanied by the fee payable; and contain sufficient information to identify the requested document. 1.2.89 The agency must assist an applicant to ensure that the application contains sufficient identifying information: s 15. The application must be dealt with as soon as practicable and not later than 30 days after being received: s 14(2).

Tasmania 1.2.90 By the Right to Information Act 2004 (Tas) a person must make a written application for an assessed disclosure of information which contains the minimum prescribed information: see ss 13(2) and (3). The Right to Information Regulations 2010 (Tas) state that an application must (reg 4): contain the name and address of the applicant and daytime contact details as well as any required proof of identity; specify the general topic of the application, the details of the information sought and details of any efforts undertaken beforehand to obtain it; and be dated and signed. 1.2.91 Assistance must be given if requested or appropriate: s 13(8) of the Act. The relevant period for notification of the decision is 20 working days after the application is accepted: s 15(1).

Victoria 1.2.92 By the Freedom of Information Act 1982 (Vic) a person must make a request in writing for access to a document, accompanied by the fee

payable, which provides such information concerning the document as is reasonably necessary to enable it to be identified: see ss 17(1), (2) and (2A). 1.2.93 Assistance must be given to enable a lawful request to be made: s 17(3). The decision on the application must be made as soon as practicable but no later than 45 days after the request is received: (s 21). This period may shortly be reduced to 30 days. [page 26]

Western Australia 1.2.94 Under the Freedom of Information Act 1992 (WA) an access application must (s 12(1)): be in writing; give a return address and any other required details; be lodged at an office of the agency in question together with any fee payable; and give enough information to enable the requested documents to be identified. 1.2.95 Reasonable steps must be taken to assist an applicant with a request: s 11(2). The permitted period for decision under the Act is usually 45 days (ie unless a longer period applies): s 13(3).

1.

Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 at [66].

2.

See Osland v Secretary to the Dept of Justice (No 2) (2010) 241 CLR 320; 116 ALD 1; [2010] HCA 24; BC201004221 at [7].

3.

See Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79; BC201301724.

4.

Knapp and Australian Accounting Standards Board [2014] AATA 744 at [24]. See also Lester and Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646.

5.

Victorian Public Service Board v Wright [1986] HCA 16; (1986) 64 ALR 206 at 212. Quoted in Tabcorp Holdings Ltd v Secretary to the Department of Treasury and Finance (No 1) [2013] VCAT 1234 at [32].

6.

For a discussion of the expression a “prescribed authority” see Re Sobczuk and Carnarvon Medical Service Aboriginal Corp (1999) 58 ALD 727; 31 AAR 7; [1999] AATA 864 (respondent not a prescribed authority).

[page 27]

Chapter 3 Giving Access under Freedom of Information Legislation

DOCUMENTS HELD WITH OTHER AGENCIES: TRANSFERRING A REQUEST FOR ACCESS Commonwealth 1.3.1 Perhaps a requested document is not in the possession of agency A but is, to agency A’s knowledge, in the possession of agency B. Or perhaps the subject matter of the document requested is more closely connected with the functions of agency B. In that event, agency A may, with agency B’s agreement, transfer the request to agency B: s 16(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). (For this purpose an “agency” includes a Minister: s 16(6)). 1.3.2 When a request is transferred, it is taken by the Cth FOI Act to have been received by the agency at the time when it was first received by an agency: s 16(5)(b).

States and territories Australian Capital Territory 1.3.3 The Freedom of Information Act 1989 (ACT) provides for transfers of requests in s 15.

Northern Territory 1.3.4 Transfers of requests are provided for in s 29 of the Information Act 2002 (NT).

New South Wales 1.3.5 Under the Government Information (Public Access) Act 2009 (NSW), a distinction is drawn between agency-initiated transfers and applicant-initiated transfers. See s 44. The former cannot be undertaken more than 10 working days after the application is received. See s 45(2).

Queensland 1.3.6 The transfer provision is in s 38 of the Right to Information Act 2009 (Qld). It is not a ground for transfer, however, that the document is more closely related to the functions of [page 28] the other agency. The document, in order to be transferred, must be in that other agency’s possession to the knowledge of the receiving agency and that other agency must consent to the transfer. See s 38(2).

South Australia 1.3.7 The provisions in the Freedom of Information Act 1991 (SA) s 16 are substantially the same as those in the Cth FOI Act.

Tasmania 1.3.8 In s 14(1) of the Right to Information Act 2009 (Tas), transfers are limited solely to when the subject-matter of the request is more closely connected with the functions of the other public authority.

Victoria

1.3.9 Provision in s 18 of the Freedom of Information Act 1982 (Vic) is similar to that in the Cth FOI Act.

Western Australia 1.3.10 The Freedom of Information Act 1992 (WA) s 15 specifies that a transfer must be made if the agency does not hold the requested documents but knows or has reasonable grounds to believe they are held by another agency.

INFORMATION STORED ON COMPUTERS Commonwealth 1.3.11 A request may involve information stored on computer. An agency will usually (see s 17(1)(c) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act)) be required to treat the request as if it were a request for access to a written document. However, by the Cth FOI Act the agency is not bound to do so if compliance would substantially and unreasonably divert the resources of the agency from its other operations: s 17(2).

States and territories Australian Capital Territory 1.3.12 Under the Freedom of Information Act 1989 (ACT) s 16(1), a request for information not available in discrete document form is to be treated as if it were a request for access to a written document.

Northern Territory 1.3.13 The Information Act 2002 (NT) s 4 enables access to “government information” which means a record held by or on behalf of a public sector organisation and a “record”

[page 29] means recorded information in any form including data in a computer system required to be kept by the organisation.

New South Wales 1.3.14 The Government Information (Public Access) Act 2009 (NSW) is to similar effect to the Northern Territory law and a “record” is defined as any document or other source of information compiled, recorded or stored in written form or by electronic process. See Sch 4 cl 10. Under the Act it is access to government information which may be sought and that means information contained in a record held by an agency. See ss 4 and 41.

Queensland 1.3.15 The Right to Information Act 2009 (Qld) does not specifically deal with this point but it does enable access to be given (subject otherwise to provisions in the Act) in a particular form if it has been requested in that form unless, amongst other things, that would interfere unreasonably with the operations of an agency. See ss 68(3) and (4)(a). The Act also allows applications for access to a document to include access to metadata about the document: s 28(1).

South Australia 1.3.16 Under the Freedom of Information Act 1991 (SA) s 4, access to a document includes access to anything in which information is stored or from which information may be reproduced.

Tasmania 1.3.17 The Right to Information Act 2009 (Tas) s 5(1) defines “information” as including anything in which information is embodied so as to be capable of being reproduced. Access to information stored in electronic

form may in certain circumstances be refused See s 10(1). A person is not entitled to information contained in back-up systems. See s 10(2).

Victoria 1.3.18 The Freedom of Information Act 1982 (Vic) s 19(1) provides that if a request is made to an agency and it appears that it relates to information not available in discrete form in documents but it could be produced in written form by use of a computer then the request must be treated as if it were a request for a written document.

Western Australia 1.3.19 Under the Freedom of Information Act 1992 (WA) a “document” to which access may be given includes a record and a “record” means any record of information however recorded including any article on which information has been stored or recorded either mechanically, magnetically or electronically. See Glossary. [page 30]

CIRCUMSTANCES IN WHICH ACCESS MUST BE GIVEN Commonwealth 1.3.20 Section 11A(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) specifies when a person must be given access to a document in accordance with the Cth FOI Act (that is, when a request has been made in accordance with the requirements of s 15(2) of the Cth FOI Act and any charge payable under the regulations (see Freedom of Information (Charges) Regulations 1982 (Cth)) has been paid.

Exempt and conditionally exempt documents

1.3.21 Note that the obligation under s 11A(1) of the Cth FOI Act does not extend to a document at a time when the document is an exempt document: s 11A(4). However, by s 11A(5), the agency or Minister must give access to a document if it is conditionally exempt unless in circumstances that would, on balance, be contrary to the public interest. There are certain situations where, despite s 11A(5), an agency or Minister is not required to give access to a document that is both exempt and conditionally exempt: see s 11A(6). 1.3.22

On exempt documents, see 4.1–4.10.

1.3.23

On conditionally exempt documents, see 4.11–4.24.

States and territories Australian Capital Territory 1.3.24 Section 17(1) and (2) of the Freedom of Information Act 1989 (ACT) is to the same effect as s 11A(1) and (4) of the Cth FOI Act respectively, excluding any duty to give access to exempt documents.

Northern Territory 1.3.25 A public sector organisation is under a duty to provide access to information as set out in s 21(2) of the Information Act 2002 (NT). Access may be refused to information because it is exempt. See s 24(1).

New South Wales 1.3.26 Under the Government Information (Public Access) Act 2009 (NSW) an agency is required to decide upon an access application, after it has initially determined it is a valid one, and give notice of its decision accordingly. See ss 43, 51 and 57. Access to excluded information is not open. An agency decides an access application for government information by deciding to provide access to the information or by making certain other decisions. See s 58(1).

Queensland

1.3.27 By the Right to Information Act 2009 (Qld) s 44(1) it is Parliament’s intention that if an access application is made then the agency concerned or the Minister should decide to give access unless doing so would be contrary to the public interest. Access may be given even if the Act provides that it may be refused. See s 44(3). [page 31]

South Australia 1.3.28 Under the Freedom of Information Act 1991 (SA) s 10(1)(a), after considering an application for access to a document, an agency must determine whether access is to be given to it or refused. Access may be refused to any document if it is an exempt document.

Tasmania 1.3.29 By the Right to Information Act 2009 (Tas) s 7 a legally enforceable right to be provided with information in the possession of a public authority or Minister is given — that is, unless the information is exempt information. A decision in respect of an application for information made to a public authority must be made by the responsible Minister, the public authority’s principal officer or a delegated officer. See s 21.

Victoria 1.3.30 Under the Freedom of Information Act 1982 (Vic) s 21(1), where a person has made a request for access to a document, access has been duly made, and any charge payable has been paid, then that person must be given access to that document. However, access is not required to be given to an exempt document. See s 21(2).

Western Australia 1.3.31

By the Freedom of Information Act 1992 (WA) s 13(1)(a)(iii) the

agency to which an access application has been made must deal with the application as soon as practicable by considering the application and deciding whether to give or refuse access to the requested documents. Access may be refused to a document if it is an exempt document as provided in s 23(1)(a).

FORM OF ACCESS Commonwealth 1.3.32 The forms which access may take are set out in s 20 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). The usual form is by provision by the agency or Minister of a copy of the document, as specified in s 20(1) (b). However, access can be provided by giving a reasonable opportunity of inspection of a document (s 20(1)(a)) or by allowing a person to listen to sounds or see visual images if a document is of that kind (s 20(1)(c)). But, subject to s 20(3) and to s 22 of the Cth FOI Act. 1.3.33 Where an applicant has requested access in a particular form, access must be given in that form (s 20(2)), subject to: section 22, which relates to deletion of exempt matter or irrelevant material; and section 20(3), which deals with forms of access that would interfere unreasonably with the operations of an agency or the performance by a Minister of his or her functions, or would be detrimental to the document or would, in certain circumstances, involve infringement of copyright. [page 32] 1.3.34 In either of those events, access in the requested form may be refused but may be given in another form.

1.3.35 Although there is a right of access given by the Cth FOI Act it has been said it must be recognised that agencies have finite resources to carry out a range of functions and to meet their responsibilities.1

States and territories Australian Capital Territory 1.3.36 By the Freedom of Information Act 1989 (ACT) access to a document may be given in a number of ways. For example, a person may be given a reasonable opportunity to inspect the document or may be provided with a copy of the document. See s 19(1)(a) and (b). However, as with the Cth FOI Act, where a person has requested access in a particular form, access must be given in that form: s 19(2). That is, if access in that form would not unreasonably interfere with the operations of the agency concerned or with the Minister’s exercise of functions or would be detrimental to the preservation of the document or would involve copyright infringement. See s 19(3).

Northern Territory 1.3.37 Under the Information Act 2002 (NT) s 21(2)(a) access is provided to information by a public sector organisation by providing the applicant with a copy or by permitting the applicant to examine it. A public sector organisation by s 25(1) may decide to refuse access if providing it would unreasonably interfere with the operations of the agency.

New South Wales 1.3.38 By the Government Information (Public Access) Act 2009 (NSW) s 72(1)(a) and (b) access to government information may be given by providing a reasonable opportunity to inspect a record containing the information or by providing a copy of the record itself containing the information. Or, by s 72(1)(c), access may be given by providing access to a record containing the information together with facilities enabling the information to be read or

viewed or listened to. Or, again, by s 72(1)(d), access may be given by providing a written transcript of the information. 1.3.39 Access, however, need not be provided by s 72(2)(a) if (see s 72(2) (a)–(d): it would unreasonably interfere with the operations of the agency or would result in it incurring unreasonable additional cost; it would be detrimental to the proper preservation of the record or would involve copyright infringement; or there is an overriding public interest against disclosure in the way an applicant has requested it. [page 33] 1.3.40 Unsupported listening to recordings in the respondent’s offices, and taking notes, and permitting a support person to be present was allowed in one case.2

Queensland 1.3.41 The Right to Information Act 2009 (Qld) s 68(1) corresponds to s 72 of the Government Information (Public Access) Act 2009 (NSW). But if an applicant has requested access in a particular form, access must be given in that form. See s 68(3). This does not apply if access in that form would unreasonably interfere with the operations of the agency concerned or the performance of the Minister’s functions, or would be detrimental to the document or would involve an infringement of copyright. See s 68(4). In those instances, access may be given in another form.

South Australia 1.3.42 Under the Freedom of Information Act 1991 (SA) s 22(1)(a) and (b) access may be given by affording a person a reasonable opportunity to

inspect a document or by giving that person a copy of it. Or, by making arrangements for a person to hear or view sounds or visual images or by giving him or her a written transcript of the words recorded or contained in the document. See s 22(1)(c), (d) and (e). 1.3.43 The general rule, in s 22(2) of the Act, is that if a person has requested access in a particular form, it must be given in that form. Similar exceptions to this apply: unreasonably diverting resources; being detrimental to the preservation of the document; and involving copyright infringement. See s 22(2). In any of those events, access may be given in some other way.

Tasmania 1.3.44 Under the Right to Information Act 2009 (Tas) by s 18(1) access may be given by an opportunity to inspect or to hear sounds or view images or by providing the applicant with a transcript of the requested information or with a copy of the record containing the information. Access in a particular form which has been requested must be provided in that form unless by s 18(4) it is impracticable to do so or if it would breach copyright.

Victoria 1.3.45 The Freedom of Information Act 1982 (Vic) s 23(1) is expressed in similar terms to s 18(1) of the Tasmanian Act. Access to a document in a particular form by s 23(3) may be denied if it would unreasonably interfere with the operations of an agency of the performance of a Minister’s functions or if it would be detrimental to the preservation of the document or if it would involve infringement of copyright. In such cases, access may be given in another form. [page 34]

Western Australia

1.3.46 The Freedom of Information Act 1992 (WA) s 27 is expressed in similar terms to both s 18(1) of the Tasmanian Act and s 23(1) of the Victorian Act. Access to a document in a particular form must be given unless any of the grounds in s 27(2) apply, which are similar to those in s 23(3) of the Victorian Act, in which case access may be given in some other way.

CIRCUMSTANCES IN WHICH ACCESS MAY BE DEFERRED Commonwealth 1.3.47 In certain circumstances, s 21 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) allows an agency or the Minister to defer provision of access. One area where this is so, under the Cth FOI Act, is if premature release of the document concerned would be contrary to the public interest — until the occurrence of any event after which or the expiration of any period of time beyond which the release of the document would not be contrary to it: s 21(1)(c).

States and territories 1.3.48 The Freedom of Information Act 1989 (ACT) s 29 deals with deferment of access. Premature release being contrary to the public interest is a ground under that Act as under the Cth FOI Act: see s 20(1)(c). 1.3.49 Access is able to be deferred in the remaining states and territories, although their Acts do not specify premature release being contrary to the public interest as a ground for deferral. See Information Act 2002 (NT) s 23; Government Information (Public Access) Act 2009 (NSW) s 78; Right to Information Act 2009 (Qld) s 72; Freedom of Information Act 1991 (SA) s 21; Right to Information Act 2009 (Tas) s 17; Freedom of Information Act 1982 (Vic) s 24; and Freedom of Information Act 1992 (WA) s 25.

DEALING WITH EXEMPT MATTER OR IRRELEVANT MATERIAL Commonwealth 1.3.50 An agency or the Minister is able to delete exempt or irrelevant matter as provided by s 22 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). If: it is reasonably practicable to make deletions to a copy of a requested document (having regard to the nature and extent of the modification to be made and to the resources available); and after the deletions, access to the edited copy; would be required to be given by s 11A (for example, an exempt document that would no longer be considered exempt once edited); and would not disclose information that would reasonably be regarded as irrelevant to the request; [page 35] then access must be provided to that edited copy. The applicant must be informed in writing (s 22(3)); that it is an edited copy with deletions; the ground(s) for the deletions; and (if the matter deleted is exempt matter) that the matter deleted is exempt matter because of a specified provision of the Cth FOI Act.

States and territories Australian Capital Territory 1.3.51

Deletions of exempt matter is dealt with in s 21 of the Freedom of

Information Act 1989 (ACT). The deletions must be able to be accomplished without the document becoming misleading: see s 21(1)(b).

Northern Territory 1.3.52 An edited copy is able to be provided under s 22 of the Information Act 2002 (NT) if (s 22(2)(b)) it contains information of substance.

New South Wales 1.3.53 Under s 74 of the Government Information (Public Access) Act 2009 (NSW) an agency can delete information from a copy of a record either because the deleted information is not relevant or because the agency has decided to refuse access to it.

Queensland 1.3.54 Section 73 of the Right to Information Act 2009 (Qld) relates to deletion of irrelevant information while s 74 relates to deletion of exempt information. Deletion of contrary to public interest information is dealt with in s 75.

South Australia 1.3.55 Under s 20(4) of the Freedom of Information Act 1991 (SA), if it is practicable to give access to a copy of a document from which exempt matter has been deleted, and it appears the applicant would still wish to be given access, an agency cannot refuse to give access to the document to that limited extent.

Tasmania 1.3.56 The provision of information with exempt information deleted is contemplated by s 18(2) of the Right to Information Act 2009 (Tas).

Victoria 1.3.57

Exempt matter or irrelevant material is able to be deleted under s 25

of the Freedom of Information Act 1982 (Vic). [page 36]

Western Australia 1.3.58 The Freedom of Information Act 1992 (WA) s 24 is expressed in the same terms as the South Australian Act and allows for access to an edited copy of a document with exempt matter deleted.

WHO DECIDES AN APPLICATION FOR ACCESS Commonwealth 1.3.59 The decision in respect of a request may be made by the Minister responsible for an agency or by its principal officer: s 23(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). Subject to the regulations, the decision may be made by another officer of the agency in accordance with appropriate arrangements, such as a designated FOI officer or legal officer. 1.3.60 A decision in respect of a request made to a court, tribunal, authority or body specified in Sch 1 of the Cth FOI Act may be made by the principal officer or, subject to the regulations, by another officer in accordance with appropriate arrangements: s 23(2).

States and territories Australian Capital Territory 1.3.61 The Freedom of Information Act 1989 (ACT) s 22 is to the same effect as s 23(1) of the Cth FOI Act.

Northern Territory

1.3.62 The Information Act 2002 (NT) s 21, on the other hand, refers only to the public sector organisation providing information; however, by s 5(7) of the Act, this includes a reference to the chief executive officer or an officer, employee or agent of the organisation.

New South Wales 1.3.63 The Government Information (Public Access) Act 2009 (NSW) specifies only that an agency shall provide access.

Queensland 1.3.64 Under the Right to Information Act 2009 (Qld), an application must be dealt with by: the person who the Minister directs (s 31(1)); or an agency’s principal officer (s 30(1)), although this power may be delegated (s 30(3) and (4)).

South Australia 1.3.65 Under the Freedom of Information Act 1991 (SA) s 14 an application to an agency must be dealt with by the accredited FOI officer. [page 37]

Tasmania 1.3.66 The Right to Information Act 2009 (Tas) s 21 requires a decision on access to be made by the Minister or the principal officer of a public authority or a delegated officer.

Victoria 1.3.67 The Freedom of Information Act 1982 (Vic) s 26(1) is to the same effect as the Tasmanian legislation.

Western Australia 1.3.68 Under the Freedom of Information Act 1992 (WA) s 100(1) it is generally the principal officer of an agency who must make decision under the Act.

CIRCUMSTANCES IN WHICH ACCESS MAY BE REFUSED Commonwealth 1.3.69 In certain circumstances the Freedom of Information Act 1982 (Cth) (Cth FOI Act) allows an agency or the Minister to refuse to grant access to documents if a practical refusal reason exists in relation to the request. 1.3.70 A “practical refusal reason” is defined in s 24AA of the Cth FOI Act and includes: in the case of an agency, where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations: s 24AA(1)(a)(i); and in the case of a Minister, where the work involved in the request would substantially and unreasonably interfere with the performance of the Minister’s functions: s 24AA(1)(a)(ii). 1.3.71 In determining these matters, relevant considerations include the resources that would have to be used in identifying, locating or collating the documents within the filing system of the agency or office of the Minister concerned: s 24(2)(a). 1.3.72 These provisions (and state or territory equivalents) are designed to ensure that the operations of government agencies are not unduly impeded by agencies having to deal with unreasonably voluminous applications.3

Applicants must work co-operatively with an agency and an element of reasonableness must be implied in the process.4 1.3.73 A decision to refuse access on the ground of an unreasonable diversion of resources is not one to be made lightly.5 [page 38] 1.3.74 There is no reason to ignore the circumstance that, by reason of the voluminous nature of a particular request, an agency’s ability to process other requests is or may be impaired.6 1.3.75 Access to a document may be refused if a document cannot be found or does not appear to exist: s 24A. A respondent must have done all that could reasonably be required of it to find the documents in question before access can be denied on this ground.7 A “thorough” search is or may be required,8 or a “reasonable and sufficient” search.9 But there is no requirement that an agency examine all documents in its possession: it needs only to do all that can reasonably be done to locate documents.10 1.3.76 A claimed inability to find documents may be in truth a refusal (and accordingly reviewable on that basis) or the matter may be remitted for further searches if power to do so exists.11 The exception allowing for a request for voluminous documents to be refined is one which will be read strictly because the legislation provides for and prescribes disclosure.12 1.3.77 PR 2.

For a precedent refusal of request for practical refusal reason, see

States and territories Australian Capital Territory 1.3.78

The Freedom of Information Act 1989 (ACT) s 23 is in similar

terms to the Cth FOI Act s 24AA. The matters to be taken into account are set out in s 23(2). There is no equivalent to s 24A of the Cth FOI Act.

Northern Territory 1.3.79 The Information Act 2002 (NT) s 25(1) provides that a public sector organisation may decide to refuse access because providing access would unreasonably interfere with the operations of the organisation. By s 27(1) an organisation must notify to the relevant effect if, after taking all reasonable steps, that information cannot be identified or found or does not exist.

New South Wales 1.3.80 The Government Information (Public Access) Act 2009 (NSW) s 60(1) states that an agency may refuse to deal with an application for access: that would require an unreasonable and substantial diversion of the agency’s resources; if it has previously decided a substantially similar application; or if it is information which is available as a result of it having been produced in compliance with a subpoena or court order. [page 39] 1.3.81 By s 53(2) an agency must undertake reasonable searches to find any government information applied for.

Queensland 1.3.82 The Right to Information Act 2009 (Qld) s 41(1) is to the same effect as Cth FOI Act s 24AA. The prerequisites for the application of s 41(1) are set out in s 42. Applications for the same documents sought previously are dealt with in s 43. By s 27(1) an access application is taken only as applying to

documents that are or may be in existence on the day the application is received.

South Australia 1.3.83 The Freedom of Information Act 1991 (SA) s 18(1) is also to the same effect as Cth FOI Act s 24AA. By s 18(2a) an agency may refuse to deal with an application if it is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information. An agency may refuse to give access to a document that was not created or collated by the agency and genuinely forms part of library material held by it: s 20(1)(d).

Tasmania 1.3.84 The Right to Information Act 2009 (Tas) s 19(1) is substantially also to the same effect as Cth FOI Act s 24AA. Repeat or vexatious applications may be refused under s 20.

Victoria 1.3.85 Repeated requests are dealt with in Victoria in the Freedom of Information Act 1982 (Vic) s 24A. However, the previous request must be one where the decision was reviewed externally: s 24A(1)(b). The Act s 25A is substantially to the same effect as Cth FOI Act s 24AA.

Western Australia 1.3.86 A substantial and unreasonable diversion of a position of an agency’s resources is also a ground for refusal under s 20(1) of the Freedom of Information Act 1992 (WA). Documents that cannot be found or do not exist are dealt with under s 26 of the Act.

WHERE RESPONSE TO REQUEST WOULD ITSELF BE AN EXEMPT DOCUMENT

Commonwealth 1.3.87 Nothing in the Freedom of Information Act 1982 (Cth) (Cth FOI Act) requires an agency or Minister to give information about the existence or non-existence of a document where such information would be an exempt document by virtue of either ss 33 or 37(1): s 25(1) of the Cth FOI Act. In these circumstances, the agency or Minister may give notice in writing that it neither confirms nor denies the existence of the document: s 25(2). [page 40] 1.3.88 For the purposes of Pt VI (internal review) of the Cth FOI Act, a decision of that kind is deemed to be a decision refusing to grant access to the document for the reason that the document would be, if it existed, an exempt document: s 26(2)(b). 1.3.89

As to exempt documents, see 4.1–4.10.

States and territories Australian Capital Territory 1.3.90 The Freedom of Information Act 1989 (ACT) s 24 is to the same effect as these provisions of the Cth FOI Act.

Northern Territory 1.3.91 By the Information Act 2002 (NT) s 24(3) if it is not in the public interest for an applicant to know whether information exists or not, a public sector organisation in refusing access is not required in a notice (required by s 20) either to confirm or to deny the existence of the information.

New South Wales 1.3.92

By the Government Information (Public Access) Act 2009 (NSW) s

75(2)(b) an agency’s obligation to provide access to government information in response to an access application does not require it to verify any information held by the agency.

Queensland 1.3.93 Nothing in the Right to Information Act 2009 (Qld) requires an agency or Minister to give information about the existence or non-existence of a document containing prescribed information: s 55(1). Prescribed information includes certain exempt information: Sch 6. A notice given that a document contains prescribed information is taken to be a decision refusing access: s 55(4).

South Australia 1.3.94 Under the Freedom of Information Act 1991 (SA) s 23(3), where an applicant applies for access to a document which is an exempt document (but only for reasons related to criminal investigation or law enforcement), a notice of determination on the application may be given in a form that neither admits nor denies the existence of the document.

Tasmania 1.3.95 The Right to Information Act 2009 (Tas) appears to contain no equivalent provisions to those in the Cth FOI Act.

Victoria 1.3.96 Similarly, the Freedom of Information Act 1982 (Vic) does not appear to contain any equivalent provisions to those in the Cth FOI Act. [page 41]

Western Australia 1.3.97

The Freedom of Information Act 1992 (WA) s 31(1) specifies that

nothing in that Act requires an agency to give information about the existence or non-existence of a document containing certain matter that would be exempt and notice of a decision by an agency to this effect is, under s 31(2)(b), regarded as a refusal of access.

WHEN ACCESS IS REFUSED Commonwealth 1.3.98 Notice in writing must be given by the decision-maker (whoever that may be) in the event that access to a document is refused or deferred: s 26(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). The notice must state: “the findings on any material questions of fact, referring to the material on which those findings were based, and … the reasons for the decision”: s 26(1)(a); (if the document is a conditionally exempt document) the relevant public interest factors taken into account in making the decision: s 26(1)(aa); (in the case of an agency) the name and designation of the person giving the decision: s 26(1)(b); and the applicant’s rights with respect to review of the decision (including internal review) or to make a complaint to the Information Commissioner in relation to the decision: see s 26(1)(c). 1.3.99

As to conditionally exempt documents, see 4.11–4.24.

States and territories Australian Capital Territory 1.3.100 The Freedom of Information Act 1989 (ACT) s 25 is the equivalent of Cth FOI Act s 26.

Northern Territory 1.3.101 The Information Act 2002 (NT) s 24(2) requires, similarly to the ACT, that a public sector organisation must specify in the notice for decision under s 20 of that Act the reasons for refusing access and the section of the Act relied on to do so. That notice must also contain a statement setting out an applicant’s right of review or right of complaint: s 20(b).

New South Wales 1.3.102 The Government Information (Public Access) Act 2009 (NSW) s 61 requires an agency refusing access to state: the reasons for its decision; its findings on any material questions of fact underlying those reasons (referring to the information on which those findings are based); and the general nature and format of the records of the agency that contain the information concerned. [page 42]

Queensland 1.3.103 The reasons for decision which must be specified under the Right to Information Act 2009 (Qld) are set out in s 54. The reasons which must be given depend on the decision denying access. For example, in the case of a decision refusing access under s 47(3)(a) (exempt information) the notice must specify the Sch 3 provision relied on and must state the reasons for the decision classifying the information so exempt: s 54(2)(g)(iii)(B).

South Australia 1.3.104 Similar provisions to that in the New South Wales Act exist in the Freedom of Information Act 1991 (SA) s 23. A determination refusing access

to a document must state the reasons for refusal (specifying the ground for refusal relied on) and the findings made on any material question of fact underlying those reasons (referring to the sources of information on which they are based): s 23(2)(f).

Tasmania 1.3.105 The Right to Information Act 2009 (Tas) s 22(2) specifies that a decision refusing access must state: the reasons for the decision; the name and designation of the person who made it and must inform the applicant of rights of review. In substance the same provision exists in the Freedom of Information Act 1982 (Vic) s 27(1).

Victoria 1.3.106 In substance the same provision as that in Tasmania exists in the Freedom of Information Act 1982 (Vic) s 27(1).

Western Australia 1.3.107 The Freedom of Information Act 1992 (WA) s 30(f) requires a notice of decision refusing access to state the reasons for the refusal and findings on any material questions of fact underlying those reasons referring to the material on which those findings are based. A person also must be informed on rights of review and appeal (if any): s 30(h).

SPECIAL PROCEDURES APPLYING IN SOME CASES Commonwealth-state relations: Commonwealth 1.3.108 Special procedures relate to requested documents which may contain information affecting Commonwealth-state relations. A decision to grant access to a document (or edited copy of a document) of that kind must not be made by an agency or Minister until consultation has taken place

between the Commonwealth and the state concerned in accordance with any relevant arrangements between the two: s 26A(2) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). [page 43] 1.3.109 This only applies if the document falls within s 26A(1). Section 26A(1) only arises where (s 26A(1)): arrangements have indeed been entered into between the Commonwealth and a state about consultation under s 26A; a request is made for access to a document that originated with or was received from the state or authority of the state which contains stateoriginated information; and it appears to the agency or Minister that the state may reasonably wish to contend that the document is conditionally exempt under s 47B and access to it would, on balance, be contrary to the public interest. 1.3.110 If the agency or Minister decides to give access after such consultation, written notice must be given to the state and the applicant: s 26A(3). However, actual access must not be given unless the decision still stands or is confirmed after all the opportunities of the state for review or appeal in relation to the decision have run out: s 26A(4). 1.3.111 On s 47B of the Cth FOI Act (documents affecting relations with states) see 4.35–4.44. 1.3.112

Similar provision is made in the case of Norfolk Island: s 26AA.

Business, commercial and personal affairs: Commonwealth

1.3.113 Special procedures also exist in the case of requests for documents containing information concerning a person’s business or professional affairs or the business, commercial or financial affairs of an organisation or undertaking: s 27. An “exemption contention” may be claimed, namely that the document is exempt (under s 47) or conditionally exempt (under s 47G) and access to it would on balance be contrary to the public interest. 1.3.114 In these circumstances, the documents (or edited versions) may be accessed under the Cth FOI Act by an applicant if conditions are met. Access must not be given unless: the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention: s 27(4); the agency or Minister has had regard to any submissions made: s 27(4); and after all the opportunities of the person or organisation concerned for review or appeal have run out, the decision to give access still stands or is confirmed: s 27(7). 1.3.115 On both s 47 (trade secrets) and s 47G (business affairs), see 4.142–4.157.

Personal information 1.3.116 Special procedures also exist under the Cth FOI Act in respect of documents containing personal information about a person, including a person who has died: s 27A. This relates to whether the person concerned or the person’s personal representative might reasonably wish to make an “exemption contention”, that the document is conditionally exempt (under s 47F) and that access to it would on balance be contrary to the public interest. 1.3.117 In such a case, similar conditions to giving access apply as mentioned above in relation to business, commercial and personal affairs: see s 27A(3). In particular, if all

[page 44] opportunities for review or appeal have run out and the decision to give access still stands or is confirmed, then access must be given (but not before that time): by s 27A(6). 1.3.118

On s 47F (personal privacy) see 4.118–4.130.

Commonwealth-state relations: States and territories Australian Capital Territory 1.3.119 Substantially the same provisions as those in the Cth FOI Act are to be found in the Freedom of Information Act 1989 (ACT) ss 26 and 34.

Northern Territory 1.3.120 Under the Information Act 2002 (NT) s 51, information may be exempt under s 50 if disclosure would prejudice inter-governmental relations between an Australian body politic and a body politic overseas or between two or more bodies politic in Australia or in the Northern Territory. By s 50 such information is only exempt if it can be shown in a particular case that it is not in the public interest to disclose the information.

New South Wales 1.3.121 Under the Government Information (Public Access) Act 2009 (NSW) s 14 (Note 1) there are deemed to be considerations against disclosure (for determining whether there is an overriding public interest against disclosure) of information that would prejudice relations with another government. There is also a public interest consideration against disclosure of information communicated to the government by the Commonwealth or another state if notice has been given: s 14 (Note 7).

Queensland

1.3.122 The Right to Information Act 2009 (Qld) s 49(1) requires access to be given to a document unless its disclosure, on balance, would be contrary to public interest. Factors affecting this question are set out in Sch 4. Thus, by that schedule, disclosure of information could reasonably be expected to cause a public interest harm if it could cause damage to relations between the state and another government or if it could divulge confidential information communicated by or for another government.

South Australia 1.3.123 Under the Freedom of Information Act 1991 (SA) s 25(2) access must not be given to a document to which s 25 applies unless the agency concerned has taken reasonably practicable steps to obtain the views of the government concerned for s 25 (by s 25(1)) applies, inter alia, to any document concerning the affairs of the Commonwealth or another state.

Tasmania 1.3.124 Under the Right to Information Act 2009 (Tas) s 34(1) information is exempt from disclosure if its disclosure would prejudice relations between two or more states, or a [page 45] state and the Commonwealth, or the Commonwealth or a state and any other country. By s 34(3) a state includes the Northern Territory and the Australian Capital Territory.

Victoria 1.3.125 By s 29 of the Freedom of Information Act 1982 (Vic) a document is exempt if its disclosure would be contrary to the public interest and disclosure would prejudice relations between the state and the Commonwealth or any other state or territory.

Western Australia 1.3.126 Under the Freedom of Information Act 1992 (WA) exempt matter (Sch 1 cl 2(1)) includes matter which, if disclosed, could reasonably be expected to damage relations between the government and any other government (which includes the Commonwealth, another state or a territory) or would reveal confidential communications from any other government. But (Sch 1 cl 2(2)) matter is not exempt if its disclosure would, on balance, be in the public interest.

Business, commercial and personal affairs: States and territories Australian Capital Territory 1.3.127 Similar provisions to those in the Cth FOI Act exist in s 27 of the Freedom of Information Act 1989 (ACT).

Northern Territory 1.3.128 Under s 57(1) of the Information Act 2002 (NT) information may be exempt from disclosure if it would result in the disclosure of information obtained by a public sector organisation from a business, commercial or financial undertaking that is either a trade secret or would be likely to expose the undertaking to disadvantage.

New South Wales 1.3.129 Certain kinds of competitive and market sensitive information are excluded under the Government Information (Public Access) Act 2009 (NSW) Sch 2 cl 3. Also under s 54(1) and (2) of that Act consultation with the person concerned is required before disclosing information that concerns the person’s business, commercial, professional or financial interests.

Queensland 1.3.130

The Right to Information Act 2009 (Qld) s 37(1) deals with

disclosures which are of concern to third parties. It is, therefore, different to the Cth FOI Act. It provides that access may be given to a document containing information of concern to a third party only if reasonably practicable steps have been taken to obtain the views of the relevant third party about whether the document is one which falls within the Act or about whether the information is exempt information or contrary to public interest information. [page 46]

South Australia 1.3.131 The Freedom of Information Act 1991 (SA) is similar to the Cth FOI Act. In s 27(2) it provides for a process of consultation with the person concerned where a document contains trade secrets or information of commercial value or other information concerning the person’s business, professional, commercial or financial affairs.

Tasmania 1.3.132 A process of consultation is also prescribed by s 37(2) of the Right to Information Act 2009 (Tas). That applies (see s 37(1)) where a disclosure of information relates to the business affairs of a third party and the information relates to trade secrets or, if disclosed, would be likely to expose such third party to competitive disadvantage.

Victoria 1.3.133 The Tasmanian approach is similar to s 34 of the Freedom of Information Act 1982 (Vic) which provides for a process of consultation: s 34(3). The information in question is information acquired by an agency or Minister from a business, commercial or financial undertaking that relates to trade secrets or other matters of a business, commercial or financial nature

the disclosure of which (in the latter case) would be likely to expose an undertaking unreasonably to disadvantage.

Western Australia 1.3.134 The provisions in s 33 of the Freedom of Information Act 1992 (WA), which provides for consultation, is essentially the same as that in s 27 of the South Australian Act.

Personal information: States and territories Australian Capital Territory 1.3.135 Similar provisions to that in the Cth FOI Act is made by s 27A of the Freedom of Information Act 1989 (ACT). Submission from a person, or from that person’s legal representative if they have died, must be sought: see s 27(2). Criteria for deciding the matter are set out in s 27(3) but no public interest test, as such, applies.

Northern Territory 1.3.136 A consultation process is set out in s 30 of the Information Act 2002 (NT) where disclosure would be an interference with a person’s privacy and this includes the privacy of a deceased person. Specific provision is also made (see s 30(1)(c)) in regards to disclosures of information about an Aboriginal sacred site or Aboriginal tradition.

New South Wales 1.3.137 Disclosure of personal information about someone may simply fail the overriding public interest test set under the Government Information (Public Access) Act [page 47]

2009 (NSW). That is to say there are public interest considerations (such as maintaining respect for privacy) against disclosure which outweigh the public interest considerations in favour of disclosure. See s 13.

Queensland 1.3.138 A process of consultation, as before, applies under the Right to Information Act 2009 (Qld) s 37 in relation to third party disclosure and (by s 37(2)) this includes disclosure of information that may reasonably be expected to be of concern to a person, but for the fact that the person is deceased.

South Australia 1.3.139 The Freedom of Information Act 1991 (SA) s 26 also prescribes a consultation process to be followed where access is sought to a document concerning the personal affairs of any person (whether living or dead). The schedule to the Act (Sch 1, cl 6) also deals with this question.

Tasmania 1.3.140 A process of consultation also applies under s 36 of the Right to Information Act 2009 (Tas) in the case of an application for access that would involve the disclosure of personal information of a person other than the applicant.

Victoria 1.3.141 The Freedom of Information Act 1982 (Vic) s 33(1) provides that a document is an exempt document if its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). In determining this question, by s 33(2A), the agency or Minister must take into account whether disclosure of the information would or would be reasonably likely to endanger the life or physical safety of any person.

Western Australia

1.3.142 A process of consultation is specified in the Freedom of Information Act 1992 (WA) s 32 in the case of personal information about a third party even if the third party is dead.

1.

Matthews and Australian Securities and Investments Commission [2014] AATA 769 at [25].

2.

Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48.

3.

Re Park and South Metropolitan Health Service [2014] WAI Cmr 18 at [31].

4.

Ibid [36].

5.

QVFT and Secretary, Department of Immigration and Citizenship [2012] AATA 501; BC201205544 at [21].

6.

See Chief Commissioner of Police v McIntosh [2010] VSC 439; BC201007183 at [24].

7.

Hamden and Centrelink [2011] AATA 587; BC201107107 at [21].

8.

Khorramdel and Department of Human Services [2012] AATA 707; BC201207866 at [15].

9.

Quoted in Department of the Premier and Cabinet [2014] SA Omb FOI 7 at [53].

10. Nicholls and Commissioner of Taxation [2012] AATA 328; BC201203807 at [53]. 11. Victoria Police v Burton [1999] VSC 534 at [29] (open to conclude a refusal in the circumstances); Hennessy v Department of Justice [2013] VCAT 1310 (remittal). 12. See Tabcorp Holdings Ltd v Secretary to the Department of Treasury and Finance [2013] VCAT 1731 at [35].

[page 49]

Chapter 4 Exceptions to Access under Freedom of Information Legislation

MEANING OF “EXEMPT” Commonwealth 1.4.1 An exempt document is defined (rather circuitously) as one which, for the purposes of Pt IV of the Freedom of Information Act 1982 (Cth) (Cth FOI Act), is an exempt document. In more practical terms, an exempt document is one which is exempted from the operation of the Cth FOI Act (see further 1.18). It includes any official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a department of state. 1.4.2 By operation of s 11(1)(a), access is not able to be gained to a document of an agency or to an official document of a Minister that is an exempt document: s 11(1)(a). Reference should be made to Part 4 of this Commentary for guidance on Exemptions.

States and territories Australian Capital Territory 1.4.3 Under the Freedom of Information Act 1989 (ACT) s 3, the Dictionary defines an “exempt” document as a document which is exempt

under Pt 4 (which is headed “Exempt Documents”) or as one in respect of which an agency is exempt from the operation of the Act under s 6 or, finally, as one which is an official document of a Minister that contains some matter that does not relate to the affairs of an agency. An “official document” includes a document in the possession of a Minister in the Minister’s capacity as a Minister that relates to the affairs of an agency.

Northern Territory 1.4.4 The Information Act 2002 (NT) does not define “exempt” as such; however, in s 44 it provides that government information mentioned in Pt 4 Div 2 of the Act is exempt because it is not in the public interest to disclose it, while in s 50 it provides that government information mentioned in Pt 4 Div 3 is exempt only if it can be shown in a particular case that it is not in the public interest to disclose it. [page 50]

New South Wales 1.4.5 The Government Information (Public Access) Act 2009 (NSW) does not refer to “exempt” information at all but refers instead to “excluded” information. Excluded information is information relating to any function of an agency specified in Sch 2 of the Act: s 3(2) Dictionary. Schedule 2 specifies various types of information of specified agencies.

Queensland 1.4.6 The Right to Information Act 2009 (Qld) s 48(4) states that “exempt” information is information that is exempt under Sch 3. That schedule lists various types of information as exempt, eg Cabinet information.

South Australia 1.4.7

The Freedom of Information Act 1991 (SA) speaks of “exempt”

agencies and “exempt” documents. An exempt agency means a person or body referred to in Sch 2 or such a person or body in respect of classes of information specified in that schedule; it also means an agency declared by regulation to be an exempt agency: s 4. An exempt document means a document that is exempt by virtue of Sch 1: s 4.

Tasmania 1.4.8 The Right to Information Act 2009 (Tas) is similar to the Information Act 2002 (NT). Exempt information is information which is “exempt” by virtue of a provision of Pt 3: s 5 that refers particularly to Div 1. But under Div 2 information is “exempt” if the principal officer of the public authority or Minister considers, after taking into account all relevant matters, that it is contrary to the public interest to disclose it.

Victoria 1.4.9 Under the Freedom of Information Act 1982 (Vic) s 5 an “exempt” document means a document exempt under Pt IV or an official document of a Minister that contains some matter that does not relate to the affairs of an agency or department. But “exempt” matter means matter the inclusion of which in a document causes the document to be an exempt document: s 5.

Western Australia 1.4.10 The Freedom of Information Act 1992 (WA) s 9 Glossary speaks of an “exempt” agency; “exempt” document; and “exempt” matter. An exempt agency means a person or body mentioned in Sch 2 and includes staff under the control of such person or body, eg the Corruption and Crime Commission. Exempt document means a document containing exempt matter while exempt matter means matter that is exempt under Sch 1, eg certain personal information. [page 51]

MEANING OF “CONDITIONALLY EXEMPT” Commonwealth 1.4.11 A document is conditionally exempt if it falls within one of the categories set out in Pt IV Div 3 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act): s 4. These categories all relate to what are commonly called “public interest conditional exemptions”. 1.4.12 An agency or Minister must give access to a conditionally exempt document unless in the circumstances access to it at a particular time would be, on balance, contrary to the public interest: s 11A(5). 1.4.13 There is a divergence of opinion in the High Court on whether the “public interest” is a multifaceted concept or not.1 The question, however, is whether disclosure “on balance” would be contrary to the public interest. This requires a decision whether the degree of adverse effect outweighs any benefit to the public arising from disclosure.2 A document containing information which, if disclosed, could undermine, eg the health system, would be one contrary to the public interest to disclose.3 1.4.14 Factors not to be taken into account in deciding the public interest question include whether (s 11B(4)): (government embarrassment) access to the document could result in embarrassment to, or loss of confidence in, the Commonwealth or Norfolk Island Governments; (potential misinterpretation) access to the document could result in any person misinterpreting or misunderstanding it; (author seniority) the document’s author was or is of high seniority in the agency; and (confusion) access to the document could result in confusion or unnecessary debate.

1.4.15 Factors favouring access in the public interest under the Cth FOI Act include whether it would (s 11B(3)): promote the objects of the Cth FOI Act; inform debate on a matter of public importance; promote effective oversight of public expenditure; and allow a person to access his or her own personal information.

States and territories 1.4.16 State and territory laws do not make provision, as such, for documents to be “conditionally exempt”. Often, though, a document is exempt under a state or territory law if it is of a particular kind and its disclosure would not be in or would be contrary to the public interest. [page 52]

Australian Capital Territory 1.4.17 Under the Freedom of Information Act 1989 (ACT) some documents (eg those affecting personal privacy: s 41) are exempt but others (eg internal working documents: s 36) are exempt only if they satisfy certain requirements and their disclosure would be contrary to the public interest.

Northern Territory 1.4.18 Under the Information Act 2002 (NT) s 50(1) government information mentioned in Pt 4 Div 3 (eg deliberative processes: s 52) is exempt only if it can be shown in a particular case it is not in the public interest to disclose the information. Criteria for determining this are set out in s 50(2).

New South Wales

1.4.19 Under the Government Information (Public Access) Act 2009 (NSW) s 5 there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. There is a general public interest in favour of the disclosure of such information (s 12(1)) but there is a conclusively presumed overriding public interest against disclosure of the government information set out in Sch 1 (s 14(1)).

Queensland 1.4.20 Under the Right to Information Act 2009 (Qld) s 48(1), if an access application is made for a document, access must be given unless disclosure would, on balance, be contrary to the public interest. But, by s 48(2), Sch 3 of the Act sets out the types of information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest. Schedule 3 cl 3 lists, for example, Executive Council information.

South Australia 1.4.21 Exempt documents under the Freedom of Information Act 1991 (SA) are listed in Sch 1. Several of these are exempt (eg documents communicated by another government: cl 3) but others are exempt (eg documents affecting business affairs: cl 7) only if their disclosure would, on balance, be contrary to the public interest.

Tasmania 1.4.22 A similar distinction is drawn by the Right to Information Act 2009 (Tas). Part 3 Div 1 of that Act lists exemptions which are not subject to any public interest test and are not liable to be disclosed. But Div 2 lists exemptions which are subject to that test. Matters irrelevant in deciding if disclosure of information is contrary to the public interest are set out in Sch 2. For example, that the disclosure would cause a loss of confidence in the government: cl 1(c).

Victoria 1.4.23 Similarly some documents under the Freedom of Information Act 1982 (Vic) are unconditionally exempt (eg Cabinet documents: s 28) while others are only exempt if their [page 53] disclosure would be contrary to the public interest (eg internal working documents: s 30). A general provision on disclosures contrary to public interest exists in s 36.

Western Australia 1.4.24 The Freedom of Information Act 1992 (WA) Sch 1 provides that certain matter is exempt unconditionally (eg Cabinet and Executive Council: cl 1) but other matter (eg personal information, cl 3) is not exempt if its disclosure would on balance be in the public interest while yet another matter (eg deliberative processes: cl 6) is exempt only if its disclosure would on balance be contrary to the public interest.

DOCUMENTS AFFECTING NATIONAL SECURITY Commonwealth 1.4.25

A document is an exempt document if its disclosure:

would or could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth: s 33(a) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act); or would divulge any information or matter communicated by or on behalf of a foreign government (or authority of a foreign government

or international organisation) to the Commonwealth government or to an authority of the Commonwealth: s 33(b). 1.4.26 It is clear that the public interest is not a relevant criterion (s 33): either a document is caught by the security or communication provisions of the Cth FOI Act, in which case it is an exempt document, or it is not.4 It is a question of deciding whether it is reasonable (as distinct from something that is irrational, absurd or ridiculous) to expect that disclosure under the Cth FOI Act could cause damage to Australia’s international relations.5

States and territories Australian Capital Territory 1.4.27 The Freedom of Information Act 1989 (ACT) s 37A effectively reproduces the equivalent of the provisions of the Cth FOI Act.

Northern Territory 1.4.28 Information is exempt under the Information Act 2002 (NT) s 46(1)(a) if its disclosure would prejudice the security or defence of the Commonwealth or a state or territory. [page 54]

New South Wales 1.4.29 Under the Government Information (Public Access) Act 2009 (NSW) s 14 Sch 1(7) it is conclusively presumed that there is overriding public interest against the disclosure of information contained in specified documents affecting law enforcement and public safety. The exception, however, is not quite to the same effect as that in the Cth FOI Act.

Queensland

1.4.30 National or state security information is exempt from disclosure under the Right to Information Act 2009 (Qld) Sch 3 cl 9. Parliament considers the disclosure of such information, on balance, would be contrary to the public interest: see s 48(2). That is to say, information such as could reasonably be expected to damage the security of the Commonwealth or a state: cl 9(1).

South Australia 1.4.31 Documents affecting public safety are exempt under the Freedom of Information Act 1991 (SA) s 4 Sch 1(4) if it could reasonably be expected to prejudice the maintenance of any lawful method or procedure for protecting public safety, if disclosed, and if its disclosure would, on balance, be contrary to the public interest. This is not quite the same as the exemption in the Cth FOI Act.

Tasmania 1.4.32 Under the Right to Information Act 2009 (Tas) s 29(1)(a) information is exempt if its disclosure would or would be reasonably likely to endanger the security of the Commonwealth or a state or territory. Or, by s 29(1)(b), if it would or would be reasonably likely to endanger the defence of the Commonwealth.

Victoria 1.4.33 Documents affecting national security, defence or international relations are exempt under the Freedom of Information Act 1982 (Vic) s 29A. A disclosure must be such as would or could reasonably be expected to cause damage to the security of the Commonwealth or a state or territory or the defence or international relations of the Commonwealth: s 29A(1).

Western Australia 1.4.34 The Freedom of Information Act 1992 (WA) s 9, Glossary, includes as exempt matter in Sch 1 information which could reasonably be expected to

prejudice the maintenance or enforcement of any lawful measure for protecting public safety or if it originated with or was received from a Commonwealth intelligence or security agency. Again, this is slightly different to the Cth FOI Act. [page 55]

DOCUMENT AFFECTING RELATIONS WITH THE STATES Commonwealth 1.4.35

A document is conditionally exempt if its disclosure:

would or could reasonably be expected to cause damage to relations between the Commonwealth and a state: s 47B(a) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act); would divulge information or matter communicated in confidence by or on behalf of a state government (or state authority) to the Commonwealth government, or Commonwealth authority: s 47B(b); or would or could reasonably be expected to cause damage to relations between the Commonwealth and Norfolk Island: s 47B(c). 1.4.36 The words “relations between the Commonwealth and a State” (s 47B(a))6 refer to the total relationship between the Commonwealth and the relevant state, ie all contacts over a wide spectrum of matters and at a multitude of levels.7

States and territories Australian Capital Territory

1.4.37 Similar provision to that in the Cth FOI Act is made in s 34(1) of the Freedom of Information Act 1989 (ACT) However, s 34(1) does not apply to any document the disclosure of which would, on balance, be in the public interest: s 34(2).

Northern Territory 1.4.38 The Information Act 2002 (NT) s 50(1) specifies that information may be exempt from disclosure if, in a particular case, it is not in the public interest to disclose it. The Act then says (s 51) that information may be exempt under this head if its disclosure would prejudice inter-governmental relations between an Australian body politic and a body politic overseas, or between two or more bodies politic in Australia or the Northern Territory.

New South Wales 1.4.39 The Government Information (Public Access) Act 2009 (NSW) does not, in terms, provide for an exemption similar to the Cth FOI Act. But in s 5 it does provide for a presumption in favour of the disclosure of public information unless there is an overriding public interest against disclosure. Schedule 1 of the Act sets out situations where there is conclusively such a presumption. They include Cabinet information and Executive Council information, which could obviously well include information contained in documents affecting inter-governmental relations. [page 56]

Queensland 1.4.40 The Right to Information Act 2009 (Qld) operates similarly in that there is no specific exemption for documents affecting inter-governmental relations, but such documents could contain information which would be

exempt under Sch 3 such as Cabinet information or Executive Council information.

South Australia 1.4.41 The Freedom of Information Act 1991 (SA), by virtue of s 4, in Sch 1(3) exempts documents communicated by another government (intergovernmental communications) to the Government of South Australia. Further, in Sch 1(5), in similar fashion to the Cth FOI Act, documents affecting inter-governmental relations are exempt if their disclosure would, on balance, be contrary to the public interest.

Tasmania 1.4.42 The Right to Information Act 2009 (Tas) s 34(1) exempts information communicated by other jurisdictions (the Commonwealth and other states and territories) if its disclosure would be reasonably likely to impair the ability of the public authority in question, or the Minister, to obtain similar information in the future. Another provision exists where information is communicated and notice is received that it is not required to be disclosed under a corresponding law: s 34(2).

Victoria 1.4.43 The Freedom of Information Act 1982 (Vic) s 29 exempts documents the disclosure of which would prejudice relations between the Commonwealth and Victoria or any other state or territory, or which would divulge confidential information communicated in confidence by the Commonwealth or another state or territory. This disclosure, however, must be contrary to the public interest.

Western Australia 1.4.44 Intergovernmental relations matter is exempt under Sch 1(2) of the Freedom of Information Act 1992 (WA) unless its disclosure, on balance, would be in the public interest.

CABINET DOCUMENTS Commonwealth 1.4.45 Cabinet documents are exempt under the Freedom of Information Act 1982 (Cth) (Cth FOI Act). Note that “Cabinet” includes a committee of the Cabinet and a body that corresponds to the Cabinet: s 4. Cabinet documents include: [page 57] a document that has been submitted to Cabinet for its consideration,8 or that is/was/proposed by a Minister to be so submitted, provided the document that was brought into existence for the purpose of submission for consideration by the Cabinet: s 34(1)(a); documents brought into existence for the dominant purpose of briefing a Minister on a document referred to above: s 34(1)(c); an official record of Cabinet: s 34(1)(b); drafts (s 34(1)(d)), copies and extracts (s 34(2)) of any of the documents referred to above; and any document revealing a Cabinet deliberation or decision, unless the deliberation or disclosure has been officially disclosed: s 34(3). 1.4.46 Certain information consisting of purely factual material is not exempt under the Cth FOI Act: s 34(6). However, this does not apply if the disclosure of the information would reveal a Cabinet deliberation or decision and the existence of that deliberation or decision has not been officially disclosed. 1.4.47 Exempt documents used to include documents submitted to the Executive Council for its consideration under (repealed) s 35 of the Act.

1.4.48 The time at which a document is brought into existence is the time at which its purpose must be ascertained.9

States and territories Australian Capital Territory 1.4.49 The Freedom of Information Act 1989 (ACT) s 35(1) exempts from disclosure any Executive documents. That is, documents submitted to the Executive for consideration or proposed to be submitted by a Minister and brought into existence for either such purpose: s 35(1)(a). Executive documents also include any official record of the Executive or any document the disclosure of which would involve the disclosure of any deliberation or decision of the Executive (if not a document by which a decision of the Executive was officially published): see s 35(1)(b) and (d). Documents containing purely factual material are generally excluded from the prohibition on disclosure: see s 35(2). Access to a Cabinet notebook is excluded under s 11(2). The Executive includes a committee of the Executive: s 35(3). [page 58]

Northern Territory 1.4.50 Very similar provision is made in the Information Act 2002 (NT) s 45. However, information under that Act is exempt whether or not it was submitted to or was considered by Cabinet (or Executive Council) if it was brought into existence for that purpose: s 45(1)(a)(i). It is also exempt if it was brought into existence to brief a Minister in relation to a Cabinet (or Executive Council) matter (s 45(1)(a)(ii)) or would disclose a communication between Ministers about the making of a decision or the formulation of a policy if the decision or policy is of a kind generally made by Cabinet (or

Executive Council) or endorsed by it (s 45(1)(a)(vi)). Information of a purely statistical, technical, scientific or factual kind is excluded from the prohibition it its disclosure does not involve the disclosure of a deliberation or decision of Cabinet (or Executive Council): s 45(2). Excluded also from the prohibition is information coming into existence more than 10 years earlier: s 45(3).

New South Wales 1.4.51 The Government Information (Public Access) Act 2009 (NSW) s 4 (Sch 1(2)) provides for a conclusive presumption of overriding public interest against disclosure in the case of Cabinet information. However information contained in a document is not Cabinet information if its public disclosure has been approved by the Premier or Cabinet or if 10 years has passed since it came into existence. Information consisting solely of factual material is not excluded from access if the specified conditions are met and information is not Cabinet information merely because it is contained in a document which contains information which is excluded.

Queensland 1.4.52 Under the Right to Information Act 2009 (Qld) Sch 3(2), information is exempt for 10 years if it was brought into existence for Cabinet’s consideration or if its disclosure would reveal Cabinet considerations or operations or if it was brought into existence in the course of the state’s budgetary processes. Cabinet documents include submissions, briefing notes, agendas and minutes but not a report of factual or statistical information attached to any such document if conditions are met. Cabinet includes a committee and a subcommittee of Cabinet.

South Australia 1.4.53 Cabinet documents are excluded under the Freedom of Information Act 1991 (SA) Sch 1(1) in essentially the same way as the Cth FOI Act. Excluded from the exemption, however, is any document consisting of factual or statistical material (including opinion polling) that does not

disclose information concerning Cabinet deliberations or decisions or that does not relate directly to a contract or other commercial transaction still being negotiated. Nor is a document exempt from disclosure if 20 years have passed since it came into existence.

Tasmania 1.4.54 Cabinet information is also excluded under the Right to Information Act 2009 (Tas) s 16. However, by s 26(3)(a), information is not exempt from disclosure solely because it was submitted to Cabinet for consideration if it was not brought into existence for submission to Cabinet for consideration. An exclusion period of 10 years applies after which information is not exempt: see s 26(1). [page 59]

Victoria 1.4.55 Similar provision is made by the Freedom of Information Act 1982 (Vic) s 28. The prohibition on disclosure of Cabinet documents in s 28(1) does not apply after 10 years by virtue of s 28(2). Purely statistical, technical or scientific material is excluded unless its disclosure would reveal Cabinet deliberations or decisions: s 28(3). Cabinet includes a committee or subcommittee of Cabinet: s 28(7)(a). A business plan may be prepared for submission to Cabinet for consideration even though it was, or could be, used for another purpose.10 This area may shortly be the subject of legislative amendment

Western Australia 1.4.56 The Freedom of Information Act 1992 (WA) Sch 1(1), with some relatively minor changes of expression, is essentially the same as s 45 of the Information Act 2002 (NT) discussed above.

INTERNAL WORKING DOCUMENTS AND DELIBERATIVE PROCESSESS Commonwealth 1.4.57 Internal working documents, as they were known, are conditionally exempt under the Freedom of Information Act 1982 (Cth) (Cth FOI Act). 1.4.58 That is to say, a document is conditionally exempt if it would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of or for the purposes of the deliberative processes involved in the functions of an agency or Minister or the Commonwealth Government or the Norfolk Island Government: s 47C(1) (formerly s 36(1)(a)). 1.4.59 A document falls within this description if it would disclose the “thinking process” (ie deliberative process) of the agency or Minister. The courts have described this as “the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action”.11 Or “internal thinking”.12 It is usually not appropriate for this reason to release a draft or incomplete document.13 1.4.60 The relevant opinion, advice or recommendation must have been acquired or procured in the course of, or for the purposes of, the deliberative processes in question — it is not enough that it was received if it was not sought either explicitly or implicitly.14 1.4.61

See PR 3 (refusal of access in case of internal working document). [page 60]

Exceptions

1.4.62 Internal working documents do not include operational information (see s 8A) or purely factual material: see s 47C(2) of the Cth FOI Act. There are also certain exceptions under s 47C(3), including reports of scientific or technical experts.

States and territories Australian Capital Territory 1.4.63 The Freedom of Information Act 1989 (ACT) s 36 is to the same effect as the Cth FOI Act. One exception not found in the latter is the record or formal statement of the reasons for a final decision given in the exercise of a power or of an adjudicative function: s 36(4)(c).

Northern Territory 1.4.64 Essentially the same provision appears in the Information Act 2002 (NT) s 52. By s 52(4) information older than 10 years is not exempt from disclosure.

New South Wales 1.4.65 The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to the provision in s 47C of the Cth FOI Act. That is not to say, however, that the same result may not be reached in one of the various exemptions mentioned in Sch 1 which refer to information for which there is a conclusive presumption of overriding public interest against disclosure, eg Executive Council information.

Queensland 1.4.66 The same may be said of the Right to Information Act 2009 (Qld) as regards exempt information in Sch 3. For example, information briefing an incoming Minister, which is exempt from disclosure for 10 years.

South Australia

1.4.67 The Freedom of Information Act 1991 (SA) Sch 1 contains a clear exemption from disclosure of internal working documents. To fall within the exemption, however, the disclosure must be, on balance, contrary to the public interest.

Tasmania 1.4.68 Internal briefing information of a Minister is exempt from disclosure under the Right to Information Act 2009 (Tas) s 27. The exemption lasts only 10 years: s 27(2).

Victoria 1.4.69 Internal working documents are excluded from disclosure in similar terms to the Cth FOI Act under s 30 of the Freedom of Information Act 1982 (Vic), but only if [page 61] disclosure would be contrary to the public interest. In Secretary to the Department of Justice v Osland15 the public interest considerations underlying the public interest in this regard were held to include “the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, in the preservation of confidentiality so as to promote the giving of full and frank advice”. Obviously there may be public interest factors related to transparency and clearing the air but these may well be outweighed by the harm that could be done to the effective operation and supervision of an agency by government in allowing a specific disclosure.16 In short, the public interest is a matter in which the public at large has an interest as distinct from the interests of a particular individual or individuals.17 The Victoria Act refers to deliberations etc between “officers” and others and officers include consultants or independent contractors.18

Western Australia 1.4.70 Deliberative processes are excluded from disclosure under Sch 1 of the Freedom of Information Act 1992 (WA) if disclosure of them, on balance, would be contrary to the public interest. The exemption lasts 10 years.

DOCUMENTS AFFECTING LAW ENFORCEMENT AND PUBLIC SAFETY Commonwealth 1.4.71 A document is an exempt document if its disclosure would or could reasonably be expected to: prejudice: –

the conduct of an investigation of a breach or possible breach of the law: s 37(1)(a) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act);

–

the conduct of an investigation of a failure or possible failure to comply with a law relating to taxation: s 37(1)(a);

–

the enforcement or proper administration of the law in a particular instance: s 37(1)(a);

–

the fair trial of a person or the impartial adjudication of a particular case: s 37(2)(a); or

–

the maintenance or enforcement of lawful methods for the protection of public safety: s 37(2)(c); [page 62]

disclose or enable a person to ascertain the existence or identity of a confidential source of information or the non-existence of a

confidential source of information in relation to the enforcement or administration of the law: s 37(1)(b); endanger the life or physical safety of any person: s 37(1)(c); or disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law, where this disclosure would (or could be reasonably likely to) prejudice the effectiveness of the methods or procedures: s 37(2)(b). 1.4.72 In this context, a “law” means a law of the Commonwealth or of a state or territory: s 37(3). 1.4.73 The word “endanger” in s 37(1)(c) of the Cth FOI Act would mean expose to danger.19 1.4.74 Special provision is made for when a person is to be taken to be a confidential source of information: s 37(2A). This includes a person receiving protection under a witness protection program: s 37(2A)(a). 1.4.75 The exemptions in s 37(1)(a) do not apply if an investigation has been concluded.20 Moreover, that section relates to investigations and not to (the wider) notion of operations.21 To fall within the exemption there must be more than a mere risk or possibility of prejudice: it must be the case that the disclosure “would or could reasonably” be expected to prejudice it.22 This requires a judgment as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect the prejudicial outcome.23 There must be at least a “real, significant or material possibility” of, for example, prejudice and a mere suspicion or remote chance will not be enough: the test under s 37 calls for an inference based on reasonable grounds and an inference which is in these terms.24 A “particular instance” does not require a single specific investigation but rather can encompass specific, identified aspects of the law, the administration of the law or investigations of breaches of the law or potential breaches of the law.25 1.4.76

In relation to s 37(1)(b) (confidential sources of information), a

source will be “confidential” if the information provided by that source: was provided under an express or implied pledge of confidentiality;26 and would, if disclosed, identify a confidential source of information or its existence is protected.27 [page 63] 1.4.77 As regards s 37(1)(c) (bodily harm), the question is whether a disclosure would endanger a person’s bodily safety, but the so-called “mosaic theory” (linking information with already available information) is a relevant consideration.28 1.4.78 For the application of s 37(2)(a) (fair trial), there must be evidence as to how the release of a document would give rise to the prohibited effect. Evidence relating to a specific case would be persuasive.29 1.4.79 Under s 37(2)(b) (methods or procedures for investigating) it is not a question of whether a document merely identifies a method or procedure, but whether the document discloses one which would or could reasonably be likely to have the prejudicial effect.30 In this context, “likely” means “real risk” — a document must be found, on reasonable grounds, to involve a real risk of prejudice of the kind mentioned.31

States and territories Australian Capital Territory 1.4.80 The Freedom of Information Act 1989 (ACT) s 37 makes similar provision to the Cth FOI Act. A “law” is defined by s 37(3) to mean a law in force in Australia.

Northern Territory 1.4.81

See s 46 of the Information Act 2002 (NT). However, the exemption

is placed under the topic of “prejudice” to the “maintenance of law and order in the Territory”. Section 46(2)(a) specifies when a disclosure of information prejudices the maintenance of such law and order. Exceptions are set out in s 46(3).

New South Wales 1.4.82 The Government Information (Public Access) Act 2009 (NSW) deals with documents affecting law enforcement and public safety in Sch 1 cl 7 and in the table (Notes 2 and 3) to s 14. It is conclusively presumed in cl 7 that there is an overriding public interest against disclosure in a number of specified situations.

Queensland 1.4.83 The Right to Information Act 2009 (Qld) Sch 3 cl 10 is similar in many ways to the Cth FOI Act, adding other bases for exemption such as if disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation (cl 10(1)(d)) or be expected to endanger the security of a building, structure or vehicle (cl 10(1)(h)). [page 64]

South Australia 1.4.84 The Freedom of Information Act 1991 (SA) Sch 1 cl 4 follows basically the same format as the Cth FOI Act. Certain documents, however, are made exempt per se while others are made exempt if disclosure of the matter they contain would on balance be contrary to the public interest.

Tasmania 1.4.85 The Right to Information Act 2009 (Tas) s 30 is similar to the provision in the Cth FOI Act.

Victoria 1.4.86 The Freedom of Information Act 1982 (Vic) s 31 is also similar to the provision in the Cth FOI Act. However, the exemptions do not include any documents set out in s 31(2), if it is in the public interest that access should be given. They include documents revealing that the scope of a law enforcement investigation has exceeded lawful limits (s 31(2)(a)) or revealing the use of illegal methods or procedures for detecting or investigating matters arising out of breaches of the law (s 31(2)(b)) or reporting on the degree of success achieved in a program adopted by an agency for investigating breaches of or enforcing the law (s 31(2)(d)).

Western Australia 1.4.87 The Freedom of Information Act 1992 (WA) Sch 1 cl 5 follows basically the provision in the Cth FOI Act but with some variations.

DOCUMENTS WHICH MAY DISCLOSE CERTAIN SECRET INFORMATION Commonwealth 1.4.88 A document is an exempt document (s 38(1)) of the Freedom of Information Act 1982 (Cth)) (Cth FOI Act) if: disclosure of the document or information it contains is prohibited under a provision of an enactment; and that provision is: –

specified in Sch 3; or

–

otherwise expressly made subject to the “secret information” provisions (s 38).

1.4.89

To attract this provision, the document or information contained in

it must be prohibited by the enactment concerned or another enactment: s 38(1A). 1.4.90 Generally, these provisions do not apply to a document so far as it contains personal information about the applicant: see s 38(2) and (3). [page 65] 1.4.91 A document containing personal information about an applicant is exempt from disclosure if it also contains information about third parties.32

States and territories Australian Capital Territory 1.4.92 The equivalent provision in the Freedom of Information Act 1989 (ACT) is s 38. In contrast to the Cth FOI Act, s 38 specifies that the prohibition need not be absolute but may be subject to exceptions or qualifications.

Northern Territory 1.4.93 The Information Act 2002 (NT) s 48 read with Sch 1 achieves the same result as the Cth FOI Act but specifies the actual secrecy provisions in question. For example, s 71(1) of the Adoption of Children Act 1994 (NT).

New South Wales 1.4.94 The Government Information (Public Access) Act 2009 s 14 with Sch 1, in similar fashion to the Northern Territory law, sets out the provisions in question which constitute overriding secrecy laws (eg the Bail Act 1978 (NSW) s 36C). As regards such provisions it is to be conclusively presumed that there is an overriding public interest against disclosure.

Queensland

1.4.95 The Right to Information Act 2009 (Qld) Sch 1 cl 12(1) specifies that information is exempt information if its disclosure is prohibited by any one of a number of specified provisions. They include, for example, ss 186188 of the Child Protection Act 1999 (Qld). However, by cl 12(2) information is not exempt under cl 12(1) if it is personal information for the applicant.

South Australia 1.4.96 The Freedom of Information Act 1991 (SA) Sch 1 cl 12(1) provides that a document is exempt if it contains matter the disclosure of which would be an offence against an Act. By cl 12(2), however, the disclosure itself must constitute such an offence.

Tasmania 1.4.97 The Right to Information Act 2009 (Tas) appears to contain no direct equivalent to the Cth FOI Act. Information relating to closed meetings of a council is exempt under s 32. Under s 28 information in the possession of a Minister is also exempt if it does not relate to the Minister’s official business. [page 66]

Victoria 1.4.98 The Freedom of Information Act 1982 (Vic) s 38 is in essentially the same terms as s 38 of the ACT Act.

Western Australia 1.4.99 The Freedom of Information Act 1992 (WA) Sch 1 cl 14(1) provides that matter is exempt matter if it is of a kind in certain specified provisions. These include s 23(1) of the Parliamentary Commissioner Act 1971 (WA) and s 47 of the Inspector of Custodial Services Act 2003 (WA). Other provisions in Sch 1 also deal with this. Thus cl 13(b) provides that

matter is exempt if its disclosure would reveal information relating to a person’s participation in an artificial fertilisation procedure.

DOCUMENTS CONCERNING FINANCIAL OR PROPERTY INTERESTS OF GOVERNMENT Commonwealth 1.4.100 A document is a conditionally exempt document if its disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth, Norfolk Island or an agency: s 47D of the Freedom of Information Act 1982 (Cth) (Cth FOI Act).

States and territories Australian Capital Territory 1.4.101 The same provision appears in s 39(1) of the Freedom of Information Act 1989 (ACT). However, the exemption does not apply if disclosure would, on balance, be in the public interest: s 39(2). See also s 44(1) (a) (disclosure of documents having a substantial adverse effect on the government’s ability to manage the territory’s economy).

Northern Territory 1.4.102 The same provision as that in the Cth FOI Act is contained in s 58 of the Information Act 2002 (NT).

New South Wales 1.4.103 There is no directly equivalent provision in the Government Information (Public Access) Act 2009 (NSW).

Queensland 1.4.104 As with New South Wales, there is no directly equivalent provision in the Right to Information Act 2009 (Qld).

[page 67]

South Australia 1.4.105 As with New South Wales and Queensland, there is no directly equivalent provision in the Freedom of Information Act 1991 (SA).

Tasmania 1.4.106 The Right to Information Act 2009 (Tas) provides in s 41(2) that information is exempt if its disclosure would reasonably be expected to have a substantial adverse effect on the ability of the government or any public authority to manage the economy of the state or any part of it.

Victoria 1.4.107 The Freedom of Information Act 1982 (Vic) s 36(1)(a) provides that a document is an exempt document if its premature disclosure would be contrary to the public interest because it would be reasonably likely to have a substantial adverse effect on the economy of Victoria.

Western Australia 1.4.108 By cl 10(1) in Sch 1 of the Freedom of Information Act 1992 (WA), matter is exempt matter if its disclosure could reasonably be expected to have a substantial adverse effect on the financial or property affairs of the state or an agency. However, by cl 10(2) matter is not exempt on this basis if its disclosure would, on balance, be in the public interest.

PROTECTIONS FOR AGENCY PROCEDURES, INCLUDING AUDITS Commonwealth 1.4.109

Agencies of the Commonwealth are conditionally protected by s

47E of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). For example, a document is conditionally exempt if its disclosure would or could reasonably: be expected to prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency: s 47E(a); or have a substantial adverse effect on the proper and efficient conduct of the operations of an agency: s 47E(d).

States and territories Australian Capital Territory 1.4.110 Effectively the same provision as s 47E of the Cth FOI Act is contained in s 40 of the Freedom of Information Act 1989 (ACT). But a document is not included if it contains matter which, on balance, would be in the public interest to disclose: s 40(2). [page 68]

Northern Territory 1.4.111 Similar provision to s 47E of the Cth FOI Act is to be found in s 53 of the Information Act 2002 (NT).

New South Wales 1.4.112 There is no directly equivalent provision in the Government Information (Public Access) Act 2009 (NSW). But under Sch 2 (see s 19) provision is made for excluded information of particular agencies. Thus, for example, the office of Auditor-General — investigative, audit and reporting functions are excluded as are also all functions of the Child Death Review Team.

Queensland 1.4.113 There is no provision in the Right to Information Act 2009 (Qld) which is directly equivalent to s 47E of the Cth FOI Act.

South Australia 1.4.114 The equivalent provision to Cth FOI Act s 47E is Sch 1 cl 16 of the Freedom of Information Act 1991 (SA). Disclosure concerning the operations of agencies are, however, only exempted if they would be, on balance, contrary to the public interest: cl 16(1)(b).

Tasmania 1.4.115 There is no directly equivalent provision in the Right to Information Act 2009 (Tas). But under s 40 of that Act information on procedures and criteria used in certain negotiations of public authorities is exempted from disclosure.

Victoria 1.4.116 There is no provision directly equivalent to s 47E of the Cth FOI Act in the Freedom of Information Act 1982 (Vic). But that Act contains in s 36(1)(b) a provision similar to s 40 of the Tasmanian Act.

Western Australia 1.4.117 The equivalent provision to s 47E is cl 11 in Sch 1 of the Freedom of Information Act 1992 (WA). But matter is not exempt if its disclosure would on balance be in the public interest: cl 11(2).

DOCUMENTS AFFECTING PERSONAL PRIVACY Commonwealth 1.4.118

A document is conditionally exempt if it would unreasonably

disclose personal information about any person (including a deceased person): s 47F(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act) (formerly s 41). [page 69] 1.4.119 However, this may not apply if the personal information relates only to the applicant (s 47F(3)), unless the information was provided by a qualified person and might be detrimental to the applicant’s physical or mental health or wellbeing: s 47F(5). In these circumstances, the principal officer of the agency concerned or the Minister may direct that access to the document be given instead to a (different) qualified person nominated by the applicant: s 47F(5). A “qualified person” includes a psychiatrist and a social worker: s 47F(7). 1.4.120 In determining under this section whether a disclosure would be unreasonable or not, all relevant factors must be taken into account including: the nature of the information; any public interest in disclosure; the extent to which the information is known by persons other than the person to whom it relates; and any possible harm or prejudice that might result from disclosure. 1.4.121 Information protected from disclosure under this heading is all information concerning or relating to an individual extending from the most intimate information or opinion about the individual’s private or domestic affairs to that about work or employment and activities conducted in public.33 This would include information comprising the name and mobile telephone number of a person.34 An image of a person is included,35 but it seems only if

there is nothing “inherently personal or confidential” in it.36 A disclosure may be refused where it would constitute an unnecessary intrusion into the privacy of named individuals when they have not been given an opportunity to comment on adverse allegations in a document.37 In considering whether disclosure is unreasonable in a particular case it is not to be supposed that disclosure of personal information in any particular application for access is to be treated necessarily as disclosure to the entire world.38 1.4.122 No public interest test or criterion applies under this exemption and plainly what the provision seeks to do is prevent unreasonable invasion of the privacy of third parties.39 Exempted disclosures include information the person concerned would not want disclosed without their consent and a consideration is whether it is information that has current relevance or not.40 [page 70]

States and territories Australian Capital Territory 1.4.123 The Freedom of Information Act 1989 (ACT) s 41 effectively contains the same provision as s 47F of the Cth FOI Act. The ACT Act, however, does not set out the criteria for determining when a disclosure is unreasonable or not (as the Cth FOI Act does in s 47F(2)).

Northern Territory 1.4.124 By s 56(1) of the Information Act 2002 (NT) information may be exempt under s 50 of that Act if its disclosure would be an unreasonable interference with a person’s privacy. Such a disclosure may be unreasonable even though the information arises from or out of the performance of a public duty.

New South Wales

1.4.125 The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to s 47F of the Cth FOI Act.

Queensland 1.4.126 As with New South Wales, the Right to Information Act 2009 (Qld) contains no direct equivalent to s 47F of the Cth FOI Act.

South Australia 1.4.127 The Freedom of Information Act 1991 (SA) s 26(1) relates to documents containing information concerning the personal affairs of any person (living or dead). Under s 26(2) reasonably practicable steps must be taken to obtain the views of the person concerned as to whether a document is an exempt document under cl 6 of sch 1 of the Act. The disclosure must be unreasonable in order for the exemption to apply: see cl 6(1).

Tasmania 1.4.128 By s 36(1) of the Right to Information Act 2009 (Tas) information is exempt if its disclosure would involve the disclosure of personal information about a person other than the person making the application. But relying on s 33(1) of the Act the information is exempt only if it is contrary to the public interest to disclose it.

Victoria 1.4.129 By s 33(1) of the Freedom of Information Act 1982 (Vic) a document is an exempt document if its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).41 Criteria to be [page 71] included in deciding this question are set out in s 33(2A) and they include

whether the disclosure would or would reasonably be likely to endanger the life or physical safety of any person. A genuine and reasonable perception of danger suffices.42

Western Australia 1.4.130 Under the Freedom of Information Act 1992 (WA) Sch 1 cl 3(1), matter is exempt if its disclosure would reveal personal information about an individual (living or dead) Information about the applicant is excluded: cl 3(2). By cl 3(6), matter is not exempt under cl 3(1) if its disclosure would, on balance, be in the public interest.

IS LEGAL PROFESSIONAL PRIVILEGE PROTECTED BY THE FOI LEGISLATION? Commonwealth 1.4.131 A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege: s 42(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). However, the person entitled to claim privilege may waive that claim: s 42(2). A limited exception also exists in relation to “operational information” of an agency: see ss 8A and 42(3). 1.4.132 Legal professional privilege is attracted by communications between a lawyer and client or third party for the dominant purpose of providing legal services in connection with pending or anticipated proceedings (so-called litigation privilege).43 The “dominant” purpose is the ruling, prevailing or most influential purpose.44 It need not be the sole purpose.45 It is the purpose which dominates over others.46 Legal advice is itself a wide concept and extends to professional advice by a lawyer as to what a party should prudently or sensibly do in a relevant legal context but this does not extend to advice that is purely commercial or of a public relations character.47

1.4.133 Legal professional privilege may be waived either expressly or implicitly; the party claiming the privilege must establish it on the balance of probabilities.48 [page 72]

States and territories Australian Capital Territory 1.4.134 The Freedom of Information Act 1989 (ACT) s 42(1) is in the same terms as s 42(1) of the Cth FOI Act. Similarly to s 42(3) of the Cth FOI Act, a limited exception exists in relation to operational information: see s 42(2).

Northern Territory 1.4.135 By s 49(d) of the Information Act 2002 (NT) information is exempt under s 44 of that Act if its disclosure would breach client legal privilege.

New South Wales 1.4.136 The Government Information (Public Access) Act 2009 (NSW) Sch 1 cl 5(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege unless the person in whose favour the privilege exists has waived the privilege. An agency is required to decide whether it is appropriate to waive privilege before deciding to refuse access: see cl 5(2).

Queensland 1.4.137

The Right to Information Act 2009 (Qld) Sch 3 cl 7 is in the same

terms as s 42(1) of the Cth FOI Act and excludes information subject to legal professional privilege.

South Australia 1.4.138 The Freedom of Information Act 1991 (SA) Sch 1 cl 10(1) is in the same terms as s 42(1) of the Cth FOI Act. By cl 10(2) a document, however, is not exempt merely because it contains matter that appears in an agency’s policy document.

Tasmania 1.4.139 Tasmania, in s 31 of the Right to Information Act 2009 (Tas), has the same provision as s 42(1) of the Cth FOI Act.

Victoria 1.4.140 Section 32(1) of the Freedom of Information Act 1982 (Vic) is to the same effect as s 42(1) of the Cth FOI Act. An exception for “operational” documents exists in s 32(2) of the Act.

Western Australia 1.4.141 The Freedom of Information Act 1992 (WA) Sch 1 cl 7(1) is to the same effect as s 42(1) of the Cth FOI Act. Matter relating to legal professional privilege that appears in an internal manual of an agency is excluded: cl 7(2). [page 73]

DOCUMENTS RELATING TO BUSINESS AFFAIRS Commonwealth 1.4.142

Certain documents relating to business affairs are conditionally

exempt under s 47G of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). For example, a document is conditionally exempt if its disclosure would, or could reasonably be expected to, unreasonably and adversely affect (s 47G(1)(a)): a person in respect of that person’s lawful business or professional affairs; or an organisation or undertaking in respect of its lawful business, commercial or financial affairs. 1.4.143 Certain documents relating to business affairs are conditionally exempt under s 47G of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). For example, a document is conditionally exempt if its disclosure would, or could reasonably be expected to, unreasonably and adversely affect (s 47G(1)(a)): a person in respect of that person’s lawful business or professional affairs; or an organisation or undertaking in respect of its lawful business, commercial or financial affairs. 1.4.144 However, this provision does not apply to trade secrets or “other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed” — documents containing such information are exempt documents (not merely conditionally exempt): ss 47(1) and 47G(1). 1.4.145 Of “unreasonably”, the courts have said that disclosure of a name of an enterprise referred to in a document which might impact on that company’s reputation or business would be unreasonable where the name of the enterprise and the people who work there might be blackened by association with a criminal investigation.49 1.4.146

If it be in the public interest that certain information be disclosed

that would be a factor in deciding whether a person would be unreasonably affected by the disclosure.50 1.4.147 An “undertaking” includes an undertaking carried on by or by an authority of the Commonwealth, Norfolk Island or a state or local government authority: s 47G(4). 1.4.148 Information is not taken to concern a person in respect of his or her professional affairs merely because it is information concerning that person’s status as a member of a profession: s 47G(5).

States and territories Australian Capital Territory 1.4.149 Certain documents relating to business affairs are also exempt from disclosure under the Freedom of Information Act 1989 (ACT) s 43. Basically the same format as s 47G [page 74] of the Cth FOI Act is followed. There are exceptions under s 43(3). Trade secrets are exempt from disclosure under s 32(1)(a).

Northern Territory 1.4.150 Information obtained by a public sector organisation from a business, commercial or financial undertaking is exempt under s 58(1) of the Information Act 2002 (NT) if it constitutes a trade secret (s 57(1)(a)) or if it is other information of a business, commercial or financial nature that is likely to expose the undertaking unreasonably to disadvantage (s 57(1)(b)). Criteria are set out in s 57(2) to decide whether a disclosure is likely to expose an undertaking unreasonably to disadvantage. One of those criteria is (s 57(2) (a)) whether the information is generally available to the undertaking’s

competitors. Another (s 57(2)(e)) is any other considerations that in the opinion of the public sector organisation are relevant.

New South Wales 1.4.151 The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to s 47G of the Cth FOI Act.

Queensland 1.4.152 As is the case of New South Wales, the Right to Information Act 2009 (Qld) contains no direct equivalent to s 47G of the Cth FOI Act.

South Australia 1.4.153 The Freedom of Information Act 1991 (SA) s 27(2) provides that an agency must not give access to a document to which s 27 applies (except to the person concerned) unless it has taken reasonably practicable steps to obtain the views of that person as to whether it is exempt or not. That section applies (see s 27(1)) to information concerning the trade secrets of any person or information (other than trade secrets) that has a commercial value to any person or information concerning the business, professional, commercial or financial affairs of any person.

Tasmania 1.4.154 Under s 37(1) of the Right to Information Act 2009 (Tas) information is exempt if it would disclose information acquired by a public authority or Minister about the business affairs of a person or organisation that (s 37(1)(a)) relates to trade secrets or that (s 37(1) (b)) would be likely to expose that person to competitive disadvantage, the person making an application is excluded.

Victoria 1.4.155 By s 34(1) of the Freedom of Information Act 1982 (Vic) a document is exempt if its disclosure would disclose information acquired by

an agency or a Minister from a business, commercial or financial undertaking which relates to trade secrets or other matters of a business, commercial or financial nature and the disclosure would be likely to expose the undertaking unreasonably to disadvantage. The disclosure of “valuable [page 75] commercial information” exposing a business to commercial disadvantage is protected by the exclusion.51 A document is an exempt document if it contains a trade secret of an agency: see s 34(4)(a)(i). 1.4.156 Under s 34(4)(a)(ii) of the Act it is a question whether an agency is involved in trade or commerce or not. A distinction has been drawn between engaging in governmental activities and engaging in trade or commerce.52 Or between a governmental function and a commercial or business function.53

Western Australia 1.4.157 Commercial or business information is exempt under the Freedom of Information Act 1992 (WA) Sch 1 cl 4 if the conditions specified are met. Thus by cl 4(1) matter is exempt if its disclosure would reveal trade secrets. By cl 4(2)(a) matter is exempt if it would reveal information (other than trade secrets) of a commercial value to a person, or, by cl 4(2)(c), if it would reasonably be expected to destroy or diminish that value. But by cl 4(4) matter is not exempt merely because its disclosure would reveal information about the business, professional, commercial or financial affairs of an agency. There are also other exceptions: see, for example, cl 4(3) and (7).

DOCUMENTS RELATING TO RESEARCH Commonwealth 1.4.158

A document is conditionally exempt under s 47H of the Freedom

of Information Act 1982 (Cth) (Cth FOI Act) if: it contains information relating to research being undertaken by an officer of an agency specified in Sch 4 (which includes the CSIRO and the Australian National University); or its disclosure before completion of the research would be likely to unreasonably expose the agency or officer to disadvantage.

States and territories Australian Capital Territory 1.4.159 There is no direct equivalent of s 47H of the Cth FOI Act in the Freedom of Information Act 1989 (ACT). However, under s 43(1) of that Act a document is exempt if its disclosure would disclose trade secrets or any other information having a commercial value that would be or could reasonably be expected to be destroyed or diminished if it were disclosed. [page 76]

Northern Territory 1.4.160 Section 43(1) of the Information Act 2002 (NT) is similar to s 43(1) of the ACT law. Section 57(3) of the NT Act provides that information may be exempt from disclosure under s 50 if its disclosure, in the circumstances set out, would disclose the results of scientific or technical research undertaken or being undertaken by a public sector organisation.

New South Wales 1.4.161 The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to s 47H of the Cth FOI Act.

Queensland

1.4.162 As with New South Wales, the Right to Information Act 2009 (Qld) contains no direct equivalent to s 47H of the Cth FOI Act. In Sch 1 cll 11 and 12, however, it does exclude certain documents under the Biodiversity Act 2004 (Qld) and the Gene Technology Act 2001 (Qld).

South Australia 1.4.163 Documents affecting the conduct of research are excluded in s 28 of the Freedom of Information Act 1991 (SA) in slightly different terms to s 47H of the Cth FOI Act.

Tasmania 1.4.164 The Right to Information Act 2009 (Tas) contains no direct equivalent to s 47H of the Cth FOI Act.

Victoria 1.4.165 In the circumstances set out, document containing the results of scientific or technical research undertaken by an officer of an agency are exempt under s 34(4)(b) of the Freedom of Information Act 1982 (Vic).

Western Australia 1.4.166 There is no direct equivalent to s 47H of the Cth FOI Act in the Freedom of Information Act 1992 (WA)

DOCUMENTS AFFECTING THE NATIONAL ECONOMY Commonwealth 1.4.167 The national economy is protected conditionally under the Freedom of Information Act 1982 (Cth) (Cth FOI Act). [page 77]

1.4.168 A document is conditionally exempt under the Cth FOI Act if its disclosure would or could reasonably be expected to have a substantial adverse effect on Australia’s economy by (s 47J(1)): influencing a decision or action of a person or entity; or giving a person an undue benefit or detriment in business carried on by him/her by providing premature knowledge of proposed or possible action or inaction of a person or entity. 1.4.169 The kinds of documents this may apply to include documents containing matter relating to currency or exchange rates or interest rates or taxes (including duties of customs or excise): s 47J(3). 1.4.170 A substantial adverse effect on Australia’s economy includes a substantial adverse effect on a particular sector of the economy or the economy of a particular region of Australia: s 47J(2).

States and territories Australian Capital Territory 1.4.171 Section 44 of the Freedom of Information Act 1989 (ACT) exempts documents in the case of those affecting the territory in a similar way to s 47J of the Cth FOI Act.

Northern Territory 1.4.172 The Information Act 2002 (NT) contains no direct equivalent to s 47J of the Cth FOI Act but s 58 does provide that information may be exempt under s 50 if its disclosure is reasonably likely to have a substantial adverse effect on the financial interests of the territory.

New South Wales 1.4.173 There is no direct equivalent of s 47J of the Cth FOI Act in the Government Information (Public Access) Act 2009 (NSW) but s 5 of that Act

provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure.

Queensland 1.4.174 The Right to Information Act 2009 (Qld) contains no direct equivalent to s 47J of the Cth FOI Act.

South Australia 1.4.175 Documents affecting the state economy are exempt under the Freedom of Information Act 1991 (SA) Sch 1 cl 13(1). To be exempt, however, the disclosure must, on balance, be contrary to the public interest: cl 14(b). [page 78]

Tasmania 1.4.176 Information likely to affect the state economy is exempt from disclosure under s 41 of the Right to Information Act 2009 (Tas).

Victoria 1.4.177 A document is an exempt document under s 36(1)(a) of the Freedom of Information Act 1982 (Vic) if its premature disclosure under the Act would be contrary to the public interest. That is, if its disclosure would be reasonably likely to have a substantial adverse effect on the economy of Victoria — including revealing consideration of a contemplated movement in bank interest rates.

Western Australia 1.4.178 Matter relating to the state’s economy is exempt matter under the Freedom of Information Act 1992 (WA) Sch 1 cl 9(1) in the circumstances

there set out. But matter is not exempt on this basis if its disclosure, on balance, would be in the public interest: see cl 9(2).

MATERIAL OBTAINED IN CONFIDENCE Commonwealth 1.4.179 A document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth or Norfolk Island itself) for breach of confidence: s 45(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). Certain documents (eg deliberative processes documents) are excluded from this provision: see s 45(2). 1.4.180 In Corrs Pavey Whiting and Byrne v Collector of Customs (Vic),54 Gummow J said that an action for breach of confidence requires a plaintiff to: identify the information with specificity (and not merely globally); show that the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); show that the information was received by the defendant in such circumstances as to import an obligation of confidence; and show that there is actual or threatened misuse of that information which would be to the plaintiff’s detriment. 1.4.181 It is necessary that the information concerned not be in the public domain, as indicated by these remarks.55 [page 79] 1.4.182 Actions in contract, tort, negligence and for breach of statutory duty are not actions for breach of confidence known to the general law.56

States and territories Australian Capital Territory 1.4.183 By s 45(1) of the Freedom of Information Act 1989 (ACT) a document is an exempt document if its disclosure would constitute a breach of confidence.

Northern Territory 1.4.184 By s 55(1) of the Information Act 2002 (NT) information may be exempt under s 50 of that Act if its disclosure would be a breach of confidence for which a legal remedy could be obtained.

New South Wales 1.4.185 The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to s 45(1) of the Cth FOI Act.

Queensland 1.4.186 Under the Right to Information Act 2009 (Qld) Sch 3 cl 8(1), information is exempt from disclosure if its disclosure would found an action for breach of confidence. In certain circumstances this does not extend to deliberative processes: see cl 8(2). As to the meaning of deliberative processes see cl 8(3).

South Australia 1.4.187 Documents containing confidential material are exempt from disclosure under the Freedom of Information Act 1991 (SA) Sch 1 cl 13. That is, if they contain matter the disclosure of which would found an action for breach of confidence: see cl 13(1)(a). Or, if they contain matter obtained in confidence the disclosure of which might reasonably be expected to prejudice the future supply of such information to an agency and it would, on balance, be contrary to the public interest for the disclosure to take place: cl 13(1)(b).

Tasmania

1.4.188 Information is exempt information under the Right to Information Act 2009 (Tas) s 39(1) if its disclosure would divulge information communicated in confidence and it would be exempt if it were generated by a public authority or Minister and its disclosure would be reasonably likely to impair the ability of the public authority or Minister to obtain similar information in the future. This, however, does not extend to certain cases including information acquired by a public authority or Minister from a business, commercial or financial undertaking: see s 39(2)(a). [page 80]

Victoria 1.4.189 Section 35 of the Freedom of Information Act 1982 (Vic) is in the same terms as the one in Tasmania. It is accepted that a communication is not made “in confidence” even though it is marked private and confidential; conversely, no formal confidentiality agreement is required to establish information was communicated in confidence.57

Western Australia 1.4.190 Confidential communications are exempt under the Freedom of Information Act 1992 (WA) Sch 1 cl 8 — in particular under cl 8(1) — if its disclosure would be a breach of confidence for which a legal remedy could be obtained. Under cl 8(2), matter is exempt if its disclosure would reveal information of a confidential nature obtained in confidence and it could reasonably be expected to prejudice the future supply of information of that kind. But matter is not exempt under cl 8(2) if its disclosure would on balance be in the public interest: see cl 8(3).

WHERE DISCLOSING DOCUMENTS COULD CONSTITUTE CONTEMPT OR BREACH OF

PRIVILEGE Commonwealth 1.4.191 A document is an exempt document if public disclosure would (apart from the Freedom of Information Act 1982 (Cth) (Cth FOI Act) itself and any immunity of the Crown) (s 46(a) and (b) of the Cth FOI Act): be in contempt of court; be contrary to any order made or direction given by: –

a Royal Commission;

–

a tribunal; or

–

other person or body having power to take evidence on oath; or

infringe Parliamentary privilege (including as it relates to the Parliament of the Commonwealth or of a state or the Legislative Assembly of the Northern Territory or Norfolk Island).

States and Territories Australian Capital Territory 1.4.192 A provision in identical terms to s 46 of the Cth FOI Act is contained in s 46 of the Freedom of Information Act 1989 (ACT).

Northern Territory 1.4.193 Under the Information Act 2002 (NT) s 49(e) information is exempt under s 44 if its disclosure would infringe the privileges of the Legislative Assembly or another [page 81] parliament. By s 49(f), it is exempt under s 44 if its disclosure would be in

contempt of a court or tribunal or a royal commission or other commission of inquiry, whether in the territory of elsewhere.

New South Wales 1.4.194 Under the Government Information (Public Access) Act 2009 (NSW) Sch 1 cl 4(a) it is to be conclusively presumed that there is an overriding public interest against disclosure of information if the public disclosure of it would (but for any Crown immunity) constitute contempt of court. Similarly, this overriding public interest is to be presumed if it would contravene any order or direction of a person or body having power to receive evidence on oath (cl 4(b)) or if it would infringe the privilege of Parliament (cl 4(c)).

Queensland 1.4.195 The Right to Information Act 2009 (Qld) Sch 3 cl 6 is in similar terms to s 46 of the Cth FOI Act.

South Australia 1.4.196 The Freedom of Information Act 1991 (SA) Sch 1 cl 17 is in similar terms to cl 4 of the Government Information (Public Access) Act 2009 (NSW).

Tasmania 1.4.197 The Right to Information Act 2009 (Tas) contains no direct equivalent to s 46 of the Cth FOI Act.

Victoria 1.4.198 As with Tasmania, the Freedom of Information Act 1982 (Vic) contains no direct equivalent to s 46 of the Cth FOI Act.

Western Australia 1.4.199

The Freedom of Information Act 1992 (WA) Sch 1 cl 12 is in the

same terms as cl 4 of the Government Information (Public Access) Act 2009 (NSW).

ARE ANY OTHER DOCUMENTS EXEMPT? Commonwealth 1.4.200 Apart from those mentioned, certain other documents are also exempt under the Freedom of Information Act 1982 (Cth) (Cth FOI Act). These include, under s 47A(2)(a), an electoral roll. [page 82]

States and Territories 1.4.201 As with the Cth FOI Act, state and territory laws contain a number of other provisions exempting documents (or information) from disclosure. These include: certain documents arising out of companies and securities legislation (Freedom of Information Act 1989 (ACT) s 47); information contained in a complaint to the Ombudsman (Information Act 2002 (NT) s 49C(a)); information disclosing matter relating to an investigation or inquiry into a transport accident or incident (Government Information (Public Access) Act 2009 (NSW) Sch 1 cl 8(1)); budgetary information for local governments (Right to Information Act 2009 (Qld) Sch 3 cl 4B); documents of certain kinds held in public libraries (Freedom of Information Act 1991 (SA) Sch 1 cl 19); information that, if disclosed, would be likely to threaten the survival of

a rare or endangered species of flora or fauna (Right to Information Act 2009 (Tas) s 42(a)); documents the disclosure of which would be reasonably likely to have a substantial adverse effect on the economy of a municipal district (Freedom of Information Act 1982 (Vic) s 36(1)(b)); and information as to adoption (Freedom of Information Act 1992 (WA) Sch 1 cl 13). 1.4.202 Victoria (Freedom of Information Act 1982 (Vic) s 50(4)) also has an overriding public interest rule relating to disclosure (except for certain documents). However, a “high threshold” public interest must be identified: considerations in favour of disclosure must outweigh those against it and “demand or necessitate” release.58 The High Court has said it is “not enough that access to the documents could be justified in the public interest”.59 1.4.203 Generally, the public interest under s 50(4) of the Act is concerned with the benefit of the community as a whole: not the benefit of an individual and there will be no public interest in disclosure if it merely provides information or gratifies curiosity or is something only of personal significance to an individual.60 The public interest must require disclosure.61

1.

See the discussion in McKinnon v Secretary, Dept of Treasury (2006) 228 CLR 423; 91 ALD 516; [2006] HCA 45; BC200606901.

2.

Lobo and Dept of Immigration and Citizenship (2011) 124 ALD 238; 56 AAR 1; [2011] AATA 705; BC201107877 at [263].

3.

See Hassan v Australian Health Practitioner Regulation Agency [2014] QCAT 414.

4.

Commonwealth v Hittich [1994] FCA 1324 at [6].

5.

Lobo and Dept of Immigration and Citizenship (2011) 124 ALD 238; 56 AAR 1; [2011] AATA 705; BC201107877 at [74].

6.

Formerly a differently worded s 33A(1).

7.

See Arnold (on behalf of Australians for Animals) v Queensland (1987) 13 ALD 195; 73 ALR 607; 6 AAR 463 (quoted in Lobo and Dept of Immigration and Citizenship (2011) 124 ALD 238; 56 AAR 1; [2011] AATA 705; BC201107877 at [80]).

8.

All that is required is that the document be submitted for that purpose — there is no requirement

that Cabinet actually consider it: Telstra Corp Ltd and Dept of Broadband, Communications and the Digital Economy (2010) 113 ALD 623; [2010] AATA 118; BC201000521 at [164]. 9.

Fisse and Department of Treasury (2008) 101 ALD 424; 48 AAR 131; [2008]AATA 288; BC200802374 at [77]. Thus the fact that a document was originally created for a different purpose, but subsequently it was decided to submit it to Cabinet does not bring it within the exemption.

10. Donnellan v Linking Melbourne Authority [2014] VCAT 1027 at [62]. 11. See QVFT and Secretary, Dept of Immigration and Citizenship [2011] AATA 763; BC201108327 at [23] (quoting Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 at 607; 1 AAR 1). 12. Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [63]. 13. See Yarra CC v Roads Corporation [2009] VCAT 2646 at [24]. See also Tee v Department of Planning and Community Development [2013] VCAT 1150. 14. Philip Morris Ltd and Prime Minister (2011) 122 ALD 619; [2011] AATA 556; BC201106101 at [212]. 15. (2007) 26 VAR 425 at [77].. See also Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889. 16. Scott v Office of the Assistant Treasurer [2013] VCAT 2015 at [34]. 17. Re H and Department of Education [2014] WAI Cmr 21 at [44]. 18. Herington v Department of Transport, Planning and Local Infrastructure [2014] VCAT 1026 at [15]. 19. Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167; BC201206288 at [26]. 20. Grounds and Australian Federal Police [2011] AATA 358 at [37]. 21. Walker and Australian Federal Police [2010] AATA 965 at [147]. 22. Maksimovic and Commonwealth Director of Public Prosecutions [2009] AATA 700; BC200908315 at [25]. 23. See JWHL and Commissioner of Taxation [2012] AATA 337; BC201204530 at [19]. 24. Chemical Trustee Ltd and Commissioner of Taxation [2013] AATA 623 at [79]. See also Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113; Essential Services Commission of South Australia [2014] SA Omb FOI 8. 25. Cichello v Department of Justice [2014] VCAT 340 at [24]. 26. QVFT and Secretary, Dept of Immigration and Citizenship [2011]AATA 763; BC201108327 at [44] (quoting Department of Health v Jephcott (1985) 8 FCR 85; 9 ALD 35; 62 ALR 421 at [89]). 27. Lobo and Dept of Immigration and Citizenship (2011) 124 ALD 238; 56 AAR 1; [2011] AATA 705; BC201107877 at [152]. 28. Callejo and Dept of Immigration and Citizenship (2010) 51 AAR 308; [2010] AATA 244; BC201002036 at [194], [195]. 29. Wallace and Australian Federal Police (2004) 83 ALD 679; [2004] AATA 845 at [109]. 30. Ibid at [115].

31. Timothy Edward Anderson and Department of Special Minister of State (No 2) [1986] AATA 81 at [68]. 32. Petroulias and Commissioner of Taxation (2010) 122 ALD 153; [2010] AATA 1060; BC201010273 at [43]. 33. Re Denehy and Superannuation Complaints Tribunal (2012) 131 ALD 413; [2012] AATA 608; BC201206785 at [26]. 34. Re O’Donoghue and Department of Immigration and Citizenship [2013] AATA 30; BC201300107 at [27]. 35. Brygel v Victoria Police [2014] VCAT 1199 at [25]. 36. Victoria Police v Marke [2008] VSCA 218. See Glascott v Victoria Police [2014] VCAT 615 at 74. 37. Sarchese and Secretary, Dept of Agriculture, Fisheries and Forestry [2011] AATA 849; BC201109254 at [34], [35]. 38. Katz v Victoria Police [2013] VCAT 2046 at [38]. 39. Matthews and Australian Securities and Investments Commission [2014] AATA 769 at [63]. 40. See Re O’Donoghue and Department of Immigration and Citizenship [2013] AATA 30; BC201300107 at [28]. 41. See Victoria Police v Marke (2008) 23 VR 223; [2008] VSCA 218; BC200809698. 42. Brygel v Victoria Police [2014] VCAT 1199 at [47]. 43. Khorramdel and Department of Human Services [2011] AATA 803; BC201108667 at [27]. 44. Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416; 141 ALR 92; 71 ALJR 81; BC9605762. 45. Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 73; 168 ALR 123; [1999] HCA 67; BC9908417. 46. See Saggers v Environment Protection Authority [2014] NSWCATAD 37. 47. Australian Wheat Board v Cole (No 5) (2006) 155 FCR 30; 234 ALR 651 at 663; [2006] FCA 1234; BC200607325. 48. Philip Morris Ltd and Prime Minister (2011) 122 ALD 619; [2011] AATA 556; BC201106101 at [31], [55]. 49. Walker and Australian Federal Police [2010] AATA 965 at [76]. 50. Quoted in Matthews and Australian Securities and Investments Commission [2014] AATA 769 at [87]. 51. Green v Department of Human Services [2014] VCAT 1233. 52. See Pallas v Roads Corporation [2013] VCAT 1967. This followed Chapman v Luminis Pty Ltd (No 5) (2002) 123 FCR 62. 53. See Noonan v Ambulance Victoria [2014] VCAT 534 at [23] (suggesting the “core” function of the agency must be identified). 54. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443; 13 ALD 254; 74 ALR 428; 10 IPR 53. 55. Sarchese and Secretary, Dept of Agriculture, Fisheries and Forestry [2011] AATA 849; BC201109254

at [15]. Gummow J’s ruling was applied in Nikjoo and Minister for Immigration and Border Protection [2013] AATA 921. 56. Matthews and Australian Securities and Investments Commission [2014] AATA 769 at [123]. 57. See Glascott v Victoria Police [2014] VCAT 615 at [51]. 58. See Frugtniet v Legal Services Board [2014] VCAT 1299 at [105], [113]. 59. Osland v Secretary to the Department of Justice [2014] HCA 24 at [14]. 60. Cichello v Department of Justice [2014] VCAT 340 at [73]-[74]. 61. Scott v Office of Assistant Treasurer [2014] VCAT 2015 at [58].

[page 83]

Chapter 5 Amendment of Records under Freedom of Information Legislation

WHEN GOVERNMENT RECORDS ABOUT SOMEONE NEED AMENDMENT OR ANNOTATION Commonwealth 1.5.1 A person may apply to an agency or Minister for amendment or annotation of the record of information kept by that agency or Minister: s 48 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). That is, if the information: is contained in a document to which access has been lawfully provided; is personal information about the person that is: incomplete; incorrect; out of date; or misleading; and has been used or is being used or is available for use by the agency or Minister for an administrative purpose.

1.5.2 An “agency” means a “Department”, a “prescribed authority” or a “Norfolk Island authority”: s 4(1) of the FOI Act. A prescribed authority means a body corporate or an unincorporated body established for a public purpose but it does not include an incorporated company or association, a Royal Commission or Commission of Inquiry: s 4(1). 1.5.3 The discretion to amend is unfettered other than that it must be exercised in a way that is in general harmony with the objects of the Cth FOI Act.62 1.5.4

See Pr 4 (application for amendment of personal records). [page 84]

States and territories Australian Capital Territory 1.5.5 A provision in almost identical terms to s 48 of the Cth FOI Act appears in s 48 of the Freedom of Information Act 1989 (ACT). The latter, however, requires the applicant to be an Australian citizen.

Northern Territory 1.5.6 By s 16(b) of the Information Act 2002 (NT), every person has a right enforceable under that Act to correct his or her personal information if it is inaccurate, incomplete or out of date. In the event of disagreement between the person and the public sector organisation holding the information see s 16(c).

New South Wales 1.5.7 The Privacy and Personal Information Protection Act 1998 (NSW) s 15(1) requires a public sector agency to ensure that personal information is accurate, up to date, complete and not misleading. It may do so whether by

way of corrections, deletions or additions. The person to whom the information relates may request amendment.

Queensland 1.5.8 Under the Information Privacy Act 2009 (Qld) s 41(1), an individual has a right to amend, inaccurate, incomplete, out of date or misleading, documents of an agency, to the extent they contain that individual’s personal information or documents of a Minister to the same extent.

South Australia 1.5.9 A person to whom access to an agency’s documents has been given may apply for the amendment of the agency’s records (if information in such documents is in the person’s opinion incomplete, incorrect, out of date or misleading) under s 30 of the Freedom of Information Act 1991 (SA).

Tasmania 1.5.10 By s 17A of the Personal Information Protection Act 2004 (Tas) a person can request amendment of information about that person if that information is incorrect, incomplete, out of date or misleading.

Victoria 1.5.11 In effect, s 39 of the Freedom of Information Act 1982 (Vic) contains the same provision as s 48 of the Cth FOI Act. However, it also allows a deceased person via next-of-kin to make an application. [page 85]

Western Australia 1.5.12 The Freedom of Information Act 1992 (WA) s 45(1) provides to the same effect as s 48 of the Cth FOI Act. A deceased person’s closest relative is given a right to apply for amendment under s 45(2).

APPLYING FOR AMENDMENT Commonwealth 1.5.13 An application for amendment must comply with the requirements of s 49 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act), including that it must: be in writing: s 49(a); specify an Australian address to which notices may be sent: s 49(c); be sent or delivered as required under the Act: s 49(d); and as far as practicable, specify (s 49(b)): –

the required matters which include the information claimed to be incomplete, incorrect, out of date or misleading; and

–

which of these it is claimed the information is.

1.5.14 Additionally, by the Cth FOI Act, the applicant’s reasons for claiming the information is incomplete etc must be set out.

States and territories Australian Capital Territory 1.5.15 The form a request must take, under s 48 of the Freedom of Information Act 1989 (ACT) must take, is set out in s 49.

Northern Territory 1.5.16 The Information Act 2002 (NT) s 31 sets out the procedure to follow in enforcing the right given by s 16(1) of that Act.

New South Wales 1.5.17 No particular procedure to be followed is set out by the Privacy and Personal Information Protection Act 1998 (NSW).

Queensland 1.5.18 The procedure for making an amendment application under s 41(1) of the Information Privacy Act 2009 (Qld) is set out in s 44. An approved form must be used: see s 44(4)(a).

South Australia 1.5.19 The form to be followed in making an application under s 30 of the Freedom of Information Act 1991 (SA) is set out in s 31 of that Act. [page 86]

Tasmania 1.5.20 The form to be followed in making a request under s 17A of the Personal Information Act 2004 (Tas) is set out in s 17B of that Act.

Victoria 1.5.21 The form to be followed in making a request under s 39 of the Freedom of Information Act 1982 (Vic) is set out in s 40 of that Act.

Western Australia 1.5.22 How an application under s 45(1) of the Freedom of Information Act 1992 (WA) is to be made is set out in detail in s 46 of that Act.

WHEN RECORDS MAY BE AMENDED Commonwealth 1.5.23 The agency or Minister concerned may amend a record of information if satisfied that an applicant has made out his or her case under s 48 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act): see s 50(1). There is also a transfer of requests provision in s 51C.

1.5.24 The actual way in which an amendment is brought about under the Cth FOI Act is set out in s 50(2). For example, an official document may be altered to make the information complete, correct, up to date or not misleading: s 50(2)(a). 1.5.25 Alternatively, it may be possible under s 51 to make annotations on records if an application to amend records under s 48 is unsuccessful: see 5.34–5.43.

States and territories Australian Capital Territory 1.5.26 The power to make an amendment is contained in s 50(1) of the Freedom of Information Act 1989 (ACT) and may be exercised as appropriate.

Northern Territory 1.5.27 A duty is imposed on a public sector organisation to deal with an application for amendment under s 16(3) of the Information Act 2002 (NT). The amendment (correction) is made under s 34 if the case for doing so is made out.

New South Wales 1.5.28 A public sector agency requested by an individual to do so must make appropriate amendments under s 15(1) of the Privacy and Personal Information Protection Act 1998 (NSW) if warranted. [page 87]

Queensland 1.5.29

Upon an application for amendment the agency in question or the

Minister must make a considered decision on whether to do so under s 70(a) of the Information Privacy Act 2009 (Qld). By s 58 of that Act there is a proamendment bias such that by s 58(1) the agency or Minister should deal with the application unless this would not be in the public interest.

South Australia 1.5.30 The agency in question to which the application is made must determine the application under s 34 of the Freedom of Information Act 1991 (SA).

Tasmania 1.5.31 The relevant personal information custodian is required to amend, if deciding to do so, under s 17C of the Personal Information Protection Act 2004 (Tas).

Victoria 1.5.32 The agency in question or the Minister may make an amendment under s 41 of the Freedom of Information Act 1982 (Vic) if appropriate.

Western Australia 1.5.33 If satisfied it should be made, the agency in question may make the amendment acting under s 48 of the Freedom of Information Act 1992 (WA).

ANNOTATING RECORDS Commonwealth 1.5.34 The requirements which must be met in applying for an annotation are set out in s 51A of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). They are similar to the requirements of an application for amendment: see 5.13–5.22. 1.5.35 Where the agency or Minister is satisfied the case for an annotation is made out, the annotation by the Cth FOI Act must be made as set out in s

51B (which includes adding a statement provided by the applicant under s 51AC(c)). There are also a transfer of requests provisions in s 51C.

States and territories Australian Capital Territory 1.5.36 An annotation may be made by virtue of s 50(1) of the Freedom of Information Act 1989 (ACT) if the grounds for a decision to do so are made out. See also s 51(4) of that Act. [page 88]

Northern Territory 1.5.37 Information may be corrected (which could include by way of notation) under s 34(1) of the Information Act 2002 (NT). There is a power to refuse to do so by s 35 of the Act.

New South Wales 1.5.38 Information may be altered by way of additions (which would include notations) under s 15(1) of the Privacy and Personal Information Protection Act 1998 (NSW). Specific power is given to decline to make an amendment under s 15(2) of that Act.

Queensland 1.5.39 Under s 74 of the Information Privacy Act 2009 (Qld), information may be amended by having added to it an appropriate notation.

South Australia 1.5.40 Under the Freedom of Information Act 1991 (SA) s 37(1)(a), if an agency has refused to amend its records, an applicant may require an agency to add to those records a notation specifying those respects in which the

records are claimed to be incomplete, incorrect, out of date or misleading. An amendment under s 34(1)(a) of that Act could include the addition of a notation.

Tasmania 1.5.41 A personal information custodian is empowered to amend information by adding a notation to it under s 17D of the Personal Information Protection Act 2004 (Tas).

Victoria 1.5.42 A record may be amended by adding a notation to it under s 42 of the Freedom of Information Act 1982 (Vic).

Western Australia 1.5.43 The Freedom of Information Act 1992 (WA) s 50 is similar in effect to s 37(1)(a) of the Freedom of Information Act 1991 (SA) South Australian Act. Also, by s 48(1)(d) of the former, information may be amended by inserting a note in relation to it.

DOCUMENTS HELD WITH OTHER AGENCIES: TRANSFERRING A REQUEST Commonwealth 1.5.44 An agency or Minister may transfer an application for amendment or annotation of a document to another agency or Minister if (s 51C of the Freedom of Information Act 1982 (Cth) (Cth FOI Act)): [page 89] it is known that the document relates to or is in the possession of that

other agency or Minister; or the subject-matter of the document is more closely connected with the functions of that other agency or Minister.

States and territories Australian Capital Territory 1.5.45 There is power to transfer requests for access under s 15 of the Freedom of Information Act 1989 (ACT) but no direct equivalent in that Act to s 51C of the Cth FOI Act.

Northern Territory 1.5.46 Transfer of an application may take place under s 37 of the Information Act 2002 (NT).

New South Wales 1.5.47 The Privacy and Personal Information Protection 1998 (NSW) contains no direct equivalent to s 51C of the Cth FOI Act.

Queensland 1.5.48 An application for amendment may be transferred under s 59 of the Information Privacy Act 2009 (Qld).

South Australia 1.5.49 There is no direct equivalent in the Freedom of Information Act 1991 (SA) to s 51C of the Cth FOI Act.

Tasmania 1.5.50 As with South Australia, there is no direct equivalent to s 51C of the Cth FOI Act in the Personal Information Protection Act 2004 (Tas).

Victoria 1.5.51

As with Tasmania, the Freedom of Information Act 1982 (Vic)

contains no direct equivalent to s 51C of the Cth FOI Act.

Western Australia 1.5.52 There is specific power to transfer applications under s 47 of the Freedom of Information Act 1992 (WA). [page 90]

WHEN NOTIFICATION OF A DECISION MUST BE GIVEN Commonwealth 1.5.53 An agency or Minister must take all reasonable steps to enable an applicant to be notified of a decision as soon as practicable but not later than 30 days after the day on which the request is received: s 51D of the Freedom of Information Act 1982 (Cth) (Cth FOI Act).

States and territories Australian Capital Territory 1.5.54 The Freedom of Information Act 1989 (ACT) s 50(3) is to the same effect as s 51D of the Cth FOI Act.

Northern Territory 1.5.55 The Information Act 2002 (NT) s 17(1) requires an application to be dealt with as promptly as is reasonably possible.

New South Wales 1.5.56 There is no direct equivalent to s 51D of the Cth FOI Act in the Privacy and Personal Information Protection Act 1998 (NSW).

Queensland 1.5.57 No specific time limit is specified in s 73 of the Information Privacy Act 2009 (Qld).

South Australia 1.5.58 Under s 34 of the Freedom of Information Act 1991 (SA) a deemed refusal to amend arises if an application is not determined within 30 days. Otherwise there is no direct equivalent to s 51D of the Cth FOI Act.

Tasmania 1.5.59 The Personal Information Protection Act 2004 (Tas) s 17E requires at the outside a period of 20 days for notification of decision on an application.

Victoria 1.5.60 The Freedom of Information Act 1982 (Vic) specifies a maximum period of 30 days.

Western Australia 1.5.61 The Freedom of Information Act 1992 (WA) s 49(2) specifies a period of 30 days.

62. Grass and Secretary, Department of Immigration and Border Protection [2014] AATA 751 at [65].

[page 91]

Chapter 6 Reviews and Appeals under Freedom of Information Legislation

INTERNAL REVIEW Commonwealth 1.6.1 Usually there will be provision for internal review of an adverse decision. Full advantage should be taken of this, if available. 1.6.2 A party who is dissatisfied with a decision may, in certain circumstances, apply for internal review of it under s 54 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). Application is made for internal review of: an “access refusal decision” under s 54(2) (other than one made by an agency’s principal officer or the responsible Minister as provided in s 54(1)); and an “access grant decision” under s 54A (again other than one made personally by the agency’s principal officer or responsible Minister). 1.6.3 The primary meaning of an access refusal decision is a decision refusing to give access to a document in accordance with a request: see s 53A (in particular s 53A(a)). The meaning of an access grant decision is set out in

s 53B of the Cth FOI Act, which specifies decisions in a table which covers documents that may be conditionally exempt or exempt as the case may be. 1.6.4 See PR 4 (application for internal review). For Forms and Precedents see Part 2.

Time for seeking internal review 1.6.5 Specified periods are set by s 54B within which a request to review a decision must be made. However, an agency may decide to allow a further period for making an application whether or not the time for making the application has already expired: s 54B(2).

Where internal review is not granted 1.6.6 Reasons must be given in the event of a refusal to grant an internal review. The notice of refusal must state the findings on any material questions of fact and must refer to the material on which those findings are based. See ss 26(1) and 54C(4). [page 92]

Where internal review is granted 1.6.7 An agency must arrange for a person (other than the original decision maker) to review a decision within 30 days after an application for review is received: subss 54C(2) and (3). 1.6.8 If no decision is made on internal review within 30 days, a decision to affirm the original decision (be it either access grant or access refusal) is taken to have been made: ss 54L note 2 and 54M(2) note.

States and territories Australian Capital Territory

1.6.9 Internal review is provided for in s 59 of the Freedom of Information Act 1989 (ACT). Thus, by s 59(1)(a), a decision refusing or deferring access is reviewable. See also s 59(1)(b) and (c). 1.6.10 Application must be made within 28 days of notification of the decision. 1.6.11

A fresh decision must be made upon a review: s 59(2).

1.6.12

Reasons for a decision on review must be given: s 59(4).

Northern Territory 1.6.13 A person aggrieved by a decision of a public sector organisation may apply for review of that decision under s 38(1) of the Information Act 2002 (NT). The application must comply with s 38(2). 1.6.14 39(2).

The application should be made within 30 days of the decision: s

1.6.15 The review must be conducted fairly and with as much expedition as a proper consideration of the matter permits: s 39(3). 1.6.16 The outcome of the review must be notified within 30 days after the application is made: s 39(1).

New South Wales 1.6.17 A right of internal review of an agency’s decision is given by s 82(1) of the Government Information (Public Access) Act 2009 (NSW) to a person aggrieved. 1.6.18 Application must be made no more than 20 working days after notification the decision is given: s 83(1). An application out of time, however, may be accepted: s 83(2). 1.6.19

The review is undertaken by the making of a new decision: s 84(1).

1.6.20

The review decision must be made within 15 working days of

receipt of the application: s 86(1). This period, however, can be extended: see s 86(2) and (4).

Queensland 1.6.21 A person affected by a renewable decision may apply to have that decision reviewed by an agency or the Minister dealing with the application under s 80(1) of the Right to Information Act 2009 (Qld). [page 93] 1.6.22 The review must be sought within 20 business days of the date of the written notice of the decision: s 82(c). 1.6.23

An internal review must be decided as soon as practicable: s 83(1).

1.6.24

Certain decisions are not reviewable: see s 81.

South Australia 1.6.25 Under s 38(1) of the Freedom of Information Act 1991 (SA) a person aggrieved by a determination of an agency is entitled to have it reviewed. 1.6.26 The application must be lodged at an office of the agency within 30 days after the date of notice of the determination or within any further period that may be allowed by the principal officer of the agency: s 38(2)(d). 1.6.27 On an application for review the determination under review may be confirmed, varied or reversed: s 38(3).

Tasmania 1.6.28 Internal review is provided for in s 43 of the Right to Information Act 2009 (Tas). 1.6.29

Generally, review must be sought within 20 working days after

notice of the decision: s 43(1). But see s 43(2) and (3). 1.6.30

In reviewing the decision, a fresh decision must be made: s 43(4)(a).

Victoria 1.6.31 Internal review as such is not available under the Freedom of Information Act 1982 (Vic) but power is given by s 6C(1)(b) of that Act to the Freedom of Information Commissioner to conduct reviews of decisions by agencies upon request. 1.6.32 An application to the Commissioner must be made within 28 days after the date on which notice of the decision is given. 1.6.33 The Commissioner must conduct a review in a timely, efficient and fair manner with as little formality and technicality as possible: s 49H(1). 1.6.34 The Act also allows complaints to be made (s 61A(1)) in respect of various matters including: a decision by an agency a document does not exist or cannot be located; delay by a Minister in dealing with a request; and action taken by a Minister (or not taken) deferring access. 1.6.35 The complaint must be made within 60 days after the action or conduct complained of: s 61A(4). 1.6.36 Thereafter inquiries may be made and the matter investigated (s 61G(1)) and a process of conciliation may follow (s 61H). The Commissioner’s office may shortly be known as the Office of Public Access (or similar) and reviews of Ministers’ decisions and not merely of agencies may be available.

Western Australia 1.6.37 A person aggrieved by a decision of an agency is given a right of review by s 39 of the Freedom of Information Act 1992 (WA). [page 94]

1.6.38 The application for review must be lodged within 30 days after written notice of the decision: s 40(2). In some cases this may be extended: see s 40(3). 1.6.39 43(1).

The decision under review may be confirmed, varied or reversed: s

EXTERNAL REVIEW: THE INFORMATION COMMISSIONER AND “IC REVIEWABLE DECISIONS” Commonwealth 1.6.40 The Information Commissioner may review an IC reviewable decision which is related to: an access refusal decision (see ss 54K(a) and 54L(2) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act)); and an access grant decision (see ss 54K(b) and 54M(2)), including both the original access decision and the internal review decision. 1.6.41 An application for the review of an access refusal decision may be made under the Cth FOI Act regardless of whether the decision was the subject of internal review: s 54L note 1. 1.6.42 If no decision is made on internal review within 30 days, a decision to affirm the original decision (be it either access grant or access refusal) is taken to have been made: ss 54L note 2 and 54M(2) note. 1.6.43 The term “IC review” is defined by the Cth FOI Act as a review of an IC reviewable decision: s 54G. The IC review application may contain particulars of the basis on which the IC review applicant disputes the IC reviewable decision: s 54N(2).

1.6.44 The powers, in general, of the Information Commissioner on IC review are set out in s 55 of the Cth FOI Act. The Information Commissioner must, after undertaking IC review, make a decision in writing affirming, varying or setting aside the IC reviewable decision and if setting it aside make a decision in substitution: s 55K(1). 1.6.45 During an IC review, a party may apply for a hearing to be conducted by the Commissioner: s 55B. 1.6.46

See PR 5 (application for IC review).

States and territories Australian Capital Territory 1.6.47 The Freedom of Information Act 1989 (ACT) does not provide for an Information or Freedom of Information Commissioner. Apart from internal review (see paras 6.1–6.39 above) there is provision only for review by the ACT Civil and Administrative Tribunal (ACAT).

Northern Territory 1.6.48 An Information Commissioner is established by the Information Act 2002 (NT) s 85(1). By s 103 of that Act a person aggrieved by a decision of a public sector organisation [page 95] on an application for review by the organisation may complain to the Commissioner about the decision. Within 90 days after receiving a complaint, the Commissioner must decide whether to accept or reject the complaint and notify the complainant in writing of that decision: s 106(1). The grounds on which the Commissioner may reject a complaint are set out in s 106(3) and (4).

New South Wales 1.6.49 The Government Information (Public Access) Act 2009 (NSW) s 89(1) gives a person aggrieved by a reviewable decision of an agency a right to have that decision reviewed by the Information Commissioner. The decision must first have been the subject of internal review except in certain cases: s 89(2). Application must be made within 40 days after notice of the decision to which the review relates is given: s 90. On a review the Commissioner may make such recommendations to the agency about the decision as may be thought appropriate: s 92(1).

Queensland 1.6.50 The Right to Information Act 2009 (Qld) s 85 provides for external review and enables a person affected by a reviewable decision to apply to have that decision reviewed by the Information Commissioner. Some decisions are not reviewable: see s 86. The application must be made in accordance with s 88. The procedure on external review is in the discretion of the Commissioner: s 95(1)(a). The Commissioner may affirm, vary or set aside the decision: s 110(1).

South Australia 1.6.51 No Freedom of Information Commissioner is provided for in the Freedom of Information Act 1991 (SA). However, external review is available to a relevant review authority (which may be the Ombudsman) under s 39 of that Act.

Tasmania 1.6.52 As with South Australia, no Freedom of Information Commissioner is provided for in the Right to Information Act 2009 (Tas). However, external review does exist under s 44 of that Act to the Ombudsman in the case of the decisions specified in s 43.

Victoria

1.6.53 Victoria does not provide for internal review in the Freedom of Information Act 1982 (Vic) but it does allow application to be made for review to the Freedom of Information Commissioner under s 49A. The application for review must be made within 28 days after the day on which notice is given of the decision: s 49B(1). By s 49L(1) the Commissioner may with the applicant’s agreement refer the matter to the agency in question for reconsideration if it appears reasonably likely a fresh decision is able to be made in a way satisfactory to the applicant. The Commissioner’s office, as noted, may shortly be known as the Office of Public Access (or similar). [page 96]

Western Australia 1.6.54 Under the Freedom of Information Act 1992 (WA) the Information Commissioner is able to receive complaints under s 65. Generally, a complaint may not be lodged unless internal review has been applied for and completed: see s 66(5) and (6). The Commissioner may make a decision confirming, varying or setting aside the decision in question: s 76(2).1

EXTERNAL REVIEW: ADMINISTRATIVE TRIBUNALS 1.6.55 In accordance with usual principles of administrative law, review by a tribunal will be undertaken on the basis that the tribunal will be concerned to reach the correct or preferable decision on the evidence or materials before it. See Drake v Minister for Immigration & Ethnic Affairs.2

Commonwealth 1.6.56

An application may be made under s 57A(1) of the Freedom of

Information Act 1982 (Cth) (Cth FOI Act) for review by the AAT of a decision of the Information Commissioner: on an IC review under s 55K; or that an IC reviewable decision in inappropriate for IC review (under s 54W(b)). 1.6.57 The time for applying to the AAT is set out in s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Special provision is made for decisions on appropriateness for IC review: s 57A(2) of the Cth FOI Act: s 57A(2) of the Cth FOI Act. The reviewable decision before the AAT under s 57A of the Cth FOI Act is generally speaking a decision of the Information Commissioner.3 1.6.58

See PR 6 (application for tribunal review).

States and territories Australian Capital Territory 1.6.59 The Freedom of Information Act 1989 (ACT) does not make provision for an Information Commissioner. There is provision only for appeal to the ACT Civil and Administrative Tribunal (ACAT) under s 60 of that Act.

Northern Territory 1.6.60 By the Information Act 2002 (NT) s 129(1), appeal from the Information Commission lies only to the Supreme Court and on a question of law only. [page 97]

New South Wales

1.6.61 The Government Information (Public Access) Act 2009 (NSW) s 100 specifies that a person aggrieved by a reviewable decision may apply to the Administrative Decisions Tribunal (ADT) for review of a decision. The Note to that provision states that a reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of ADT review.

Queensland 1.6.62 By s 119(1) of the Right to Information Act 2009 (Qld), a participant in an external review (to the Information Commissioner) may appeal to the appeal tribunal (Queensland Civil and Administrative Tribunal (QCAT)) against a decision of the Commissioner on the external review. Such appeal may only be on a question of law: s 119(2).

South Australia 1.6.63 The Freedom of Information Act 1991 (SA) s 40(1) specifies that an agency aggrieved by a determination made on review may, with leave of the District Court, appeal against the determination to the District Court but only on a question of law. Under s 40(2)(a) a person (other than an agency) aggrieved by a determination of an agency following an internal review may appeal to the District Court and this is not expressed to be limited to questions of law.

Tasmania 1.6.64 The Right to Information Act 2009 (Tas) s 44(1) allows generally for review of decisions to be taken to the Ombudsman. In certain circumstances an appeal lies to the Supreme Court from a decision of the Ombudsman under s 32 of the Ombudsman Act 1978 (Tas).

Victoria 1.6.65 By the Freedom of Information Act 1982 (Vic) s 50 application may be made for review by the Victorian Civil and Administrative Tribunal

(VCAT). For example, under s 50(1)(b) from a decision of the Freedom of Information Commissioner refusing to grant access to a document in accordance with a request. There is a public interest “override” provision in s 50(4) of the Act (as noted above) where in certain cases, despite a document being an exempt document, VCAT may determine that public access warrants that access be given.4

Western Australia 1.6.66 The Freedom of Information Act 1992 (WA) s 85(1) provides that an appeal lies to the Supreme Court on any question of law arising out of any decision of the Information Commissioner on a complaint relating to an access application. [page 98]

APPEALING TO THE COURTS Commonwealth 1.6.67 A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on IC review: s 56(1) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). The time for bringing an appeal is set out in s 56(2) of the Cth FOI Act. The court’s powers include (s 56(6)): making an order affirming or setting aside the decision of the Information Commissioner (and making a decision in substitution for it): s 56(6); remitting the case to be considered and decided again by the Information Commissioner in accordance with the directions of the court: s 56(6); and/or

making findings of fact. 1.6.68 Reference should be made to the Federal Court Rules 2011 (Cth) and to the forms under those Rules set out in the Federal Court volume in the series: Practice and Procedure of the High Court and Federal Court of Australia. 1.6.69

See PR 7 (appeal to the Federal Court).

States and territories Australian Capital Territory 1.6.70 In certain circumstances, an appeal tribunal is able to conduct appeals within ACAT. See ACT Civil and Administrative Tribunal Act (ACT) s 79. Then from a decision of the appeal tribunal and from certain other decisions, appeal may be taken to the Supreme Court whether on a question of fact or law. See s 86.

Northern Territory 1.6.71 As noted in 6.55–6.66 appeal lies with the Supreme Court from the Information Commissioner but on questions of law only. See Information Act 2002 (NT) s 129(1).

New South Wales 1.6.72 In a way similar to the ACT, an appeal panel is able to conduct appeals within the ADT. See Administrative Decisions Tribunal Act 1987 (NSW) s 113. Then from a decision of an appeal panel, appeal may be taken to the Supreme Court on a question of law only. See s 119 of that Act.

Queensland 1.6.73 Again, as with the ACT, a party may apply to the appeal tribunal of QCAT against a decision of QCAT but on a question of law only. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(1). In

various circumstances, a person may then appeal to the Court of Appeal. See s 149. [page 99]

South Australia 1.6.74 As seen in 6.55–6.66 a person may in certain circumstances appeal to the District Court under s 40(2)(a) of the Freedom of Information Act 1991 (SA). Appeal lies then to the Supreme Court. See District Court Act 1991 (SA) s 43.

Tasmania 1.6.75 In 6.55–6.66 it was noted that appeal may lie to the Supreme Court from decisions of the Ombudsman.

Victoria 1.6.76 By s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), appeal lies with leave from VCAT on a question of law to the Supreme Court (which may be the Court of Appeal of the Supreme Court depending on the VCAT member making the decision). It is necessary for an applicant to identify precisely the question(s) of law involved and that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave; it may also be the case that it must be shown that to allow the error(s) to go uncorrected would impose substantial injustice.5

Western Australia 1.6.77 As noted in 6.55–6.66 appeal may lie to the Supreme Court from decision of the Information Commissioner.

OMBUDSMAN’S ROLE IN REVIEW PROCESS Commonwealth 1.6.78 Powers of the Ombudsman under the Ombudsman Act 1976 (Cth) are preserved for the purposes of Pt VIIB of the Freedom of Information Act 1982 (Cth) (investigations and complaints): s 89F.

States and territories Australian Capital Territory 1.6.79 By s 54(1) of the Freedom of Information Act 1989 (ACT) a complaint may be made to the Ombudsman concerning action taken by an agency in the execution of functions under that Act. [page 100]

Northern Territory 1.6.80 The Information Act 2002 (NT) contains no provision relating to an Ombudsman.

New South Wales 1.6.81 The Government Information (Public Access) Act 2009 (NSW) provides in s 124 that the powers of the Ombudsman of New South Wales do not extend to reviewable decisions under Pt 5 (Review of Decisions) under that Act.

Queensland 1.6.82 As with the NT, Queensland law in the Right to Information Act 2009 (Qld) contains no provision relating to an Ombudsman.

South Australia

1.6.83 At 6.40–6.54 it was noted that a relevant review authority under the Freedom of Information Act 1991 (SA) may be the Ombudsman.

Tasmania 1.6.84 The Right to Information Act 2009 (Tas) s 44 as noted in [292-225] gives extensive powers to the Ombudsman. See also s 47.

Victoria 1.6.85 The Freedom of Information Act 1982 (Vic) contains no specific reference to the Ombudsman.

Western Australia 1.6.86 As with Victoria, the Freedom of Information Act 1992 (WA) does not deal directly with the authority of the Ombudsman.

1.

See Apache Northwest Pty Ltd v Dept of Mines and Petroleum [2012] WASCA 167; BC201206288 at [60].

2.

(1979) 2 ALD 60

3.

Druett and Centrelink [2012] AATA 390; BC201204558.

4.

See Osland v Secretary to the Dept of Justice (2010) 241 CLR 320; 116 ALD 1; [2010] HCA 24; BC201004221.

5.

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 at 337. See Secretary of the Department of Primary Industries v Environment Victoria Inc [2013] VSC 300 at [32].

[page 101]

Part 2 Forms and Precedents

[page 103]

Precedent 1 Request for Access under the Freedom of Information Act 1982 (Cth)

Request for access Pursuant to, and for the purposes of the Freedom of Information Act 1982 (Cth), and under s 15 of the Act, I request access to the following documents: [Insert, eg: 1.

any document(s) containing communications between Marion Smyth and Richard Barker (licensed inspector) during the period 1 May 2012 to 15 August 2012 relating to the application by her to import a Triba motor vehicle from the United Kingdom;

2.

any document(s) containing communications between Richard Barker (licensed inspector) and Maria Roxby (supervising inspector) during the period 15 August 2012 to 19 November 2012 relating to the application by Marion Smyth to import the above-referenced vehicle from the United Kingdom.]

Notices may be sent to me at: [Insert email or postal address]

[page 104]

Precedent 2 Refusal of FOI Access Request for Practical Refusal Reason

Refusal of request for practical refusal reason Reference is made to your request dated

[Insert]

2012.

A decision has been made to refuse access to the document(s). This is made pursuant to s 24AA of the Freedom of Information Act 1982 (Cth) on the ground of a practical refusal reason. The work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations. It would take [Insert detail of reason for refusal, including duration, eg “not less than 6 months for two agency employees to physically examine archival materials to process the request”].

Signed _____________________________________________ [Insert title, eg “Manager, document retrieval”]

[page 105]

Precedent 3 Refusal of FOI Access in Case of Internal Working Document

Refusal of access in case of internal working document Reference is made to your request dated

[Insert]

.

A decision has been made to refuse access to the document(s). This is made pursuant to s 47C(1) of the Freedom of Information Act 1982 (Cth) on the ground that the document would disclose matter in the nature of, or relating to, opinion or advice obtained for the purposes of the deliberative processes involved in the functions of the agency and it would be, on balance, contrary to the public interest to grant access to it. The document(s) in question [Insert brief description of document, including basis for which it would disclose the “thinking process” of an agency or Minister or the Commonwealth Government or the Norfolk Island Government, eg “gives a forecast of certain shipping container movements in Australia ports, provided by Interpol for the agency to consider in making decisions about the allocation of its resources”]. Disclosure of the information could [Insert brief

reasons for refusing access, eg “prejudice ongoing investigations of the agency in relation to the illegal importation of wildlife”].

Signed _____________________________________________ [Insert title, eg “Manager, document retrieval”]

[page 106]

Precedent 4 Application for Amendment of Personal Records under Freedom of Information Act 1982 (Cth)

Application for amendment of personal records Pursuant to, and for the purposes of, the Freedom of Information Act 1982 (Cth), and under s 48 of the Act, I apply for amendment of the record of information kept by the agency concerning my personal affairs. Access was lawfully given to me on [Insert] of a document, namely [Insert description of document, eg “statement of my personal affairs”]. Wrongly, that statement contains information [Insert brief details of inaccuracy, eg “stating I was declared bankrupt on 25 December 2011”]. This information is being used or is available for use by the agency for an administrative purpose. This information is incorrect. [Insert further reasons why the detail is inaccurate, eg “I have never been declared bankrupt. No order of a court has ever been made to that effect and, further, I have never committed an act of bankruptcy”].

Accordingly, I apply for the record kept by the agency to be amended omitting this detail. My address for notices to be sent is [Insert email or postal address].

[page 107]

Precedent 5 Application for Internal Review of FOI Access Refusal Decision

Application for internal review On [Insert] , being less than 30 days ago, I was notified of an access refusal decision in my case where I am seeking access to [Insert description of documents/information applied for, eg “any document(s) containing communications between Richard Barker (licensed inspector) and Maria Roxby (supervising inspector) during the period 15 August 2012 to 19 November 2012 relating to the application by Marion Smyth to import a Triba motor vehicle from the United Kingdom”]. This access refusal decision, I contend, is wrong and, accordingly, I apply for internal review of it.

[page 108]

Precedent 6 Application for IC Review of FOI Access Refusal Decision

Application for IC review Under s 54N of the Freedom of Information Act 1982 (Cth) I make an IC review application. I attach a copy of the notice of the IC reviewable decision for which I seek IC review. That decision denied me access to [Insert, eg “a document of the agency, provided by Interpol, giving a forecast of certain shipping container movements in Australian ports”]. In refusing me access the agency relied upon s [Insert] of the Act. The basis on which I dispute the decision is that [Insert, with reference to why access should be permitted under the Act, eg “s 47C(1) does not apply: Interpol’s document was not opinion or advice obtained by the agency for its deliberative processes or otherwise. Alternatively, if it was so obtained, disclosure of the information contained in the document, on balance, would not be contrary to the public interest in that this document relates to matters which those involved in the shipping industry should know about”].

Notices may be sent to me at: [Insert email or postal address].

[page 109]

Precedent 7 Application for Tribunal Review of FOI Access Refusal Decision

[page 110] © Commonwealth of Australia 2014. Reproduced with permission of the Administrative Appeals Tribunal.

Office use only: Fee Exempt [ ] Fee Payable [ ] Fee Paid [ ]

ADMINISTRATIVE APPEALS TRIBUNAL OR SMALL TAXATION CLAIMS TRIBUNAL APPLICATION FOR REVIEW OF DECISION This form can be used to lodge an application to the Commonwealth Administrative Appeals Tribunal (AAT) or to the Small Taxation Claims Tribunal (STCT). Please read the attached information sheet before filling out this form. APPLICANT

Full name Title: Mr Ms Other ............ First name: Gender

Miss Last name:

Date of birth Male

Telephone (business)

Mrs

Female

Telephone (home)

Your address

Your representative’s name, address and telephone number (if you have one)

(If you have a representative, please put their name (with firm or company name, if any), address and telephone number in this box.)

Interpreter Do you require the assistance of an interpreter? Yes No If yes, for which language?

Disability If you have a disability and need assistance,

please indicate whether: Visual

Hearing

Wheelchair user

Other, please specify ............................

[page 111]

DECISION You do not have to answer this question if you can attach a copy of the decision. If you don’t have a copy, please describe the decision briefly:

Date the decision was made

Date you received notice of the

Decision reference

Please refer to the attached Information for Applicants sheet

decision

Who made the decision, if known:

Department or other body: Address:

REASONS FOR APPLICATION

SMALL TAXATION CLAIMS TRIBUNAL (STCT) MATTERS (only answer this question if you want a tax decision reviewed in the STCT)

What are your reasons for seeking review of this decision? Please read the Information for Applicants sheet.

Please read the Information for Applicants sheet for details about the STCT and the Taxation Appeals Division of the AAT before you answer. Is the amount of tax in dispute less than $5,000? Yes No If yes, and you want your application dealt with in the STCT, please state the amount of tax in dispute. $................ If the amount of tax in dispute is over $5,000, or you do not state the amount of tax in dispute,

your application will be dealt with in the Taxation Appeals Division of the AAT.

Signature

Form 1 - 11/10

Date

Sub-section 29(1), sub-regulation (Administrative Appeals Tribunal Act 1975)

5(1),

[page 112]

Guide to Form 1: APPLICATION FOR REVIEW OF DECISION Use the APPLICATION FOR REVIEW OF DECISION form if you want the Administrative Appeals Tribunal (AAT) to review a decision. The AAT can review a wide range of decisions made under Commonwealth laws by the Australian Government and some non-government bodies. The AAT can also review decisions of the Norfolk Island Government.

COMPLETING THE FORM Read this guide and the form carefully and answer all of the questions. If you need more space to answer a question, continue your answer on another sheet of paper and attach it to the form. Ask the AAT if you need help filling out this form or if you need further

information. When you have filled out the form, you can bring it to the AAT in person or send it to us by post, email or fax.

APPLICANT Contact details The form asks you to give us your address and phone numbers. If you want us to contact you by email or fax, please give us those details as well. Representative You can represent yourself at the AAT or you can be represented by any person you choose. If you tell us that you have a representative, we will send letters and other documents about your case to your representative, instead of sending them to you. Interpreter If you need an interpreter, we will arrange for a qualified interpreter to assist you. Please let us know if you speak a particular dialect. Disability If you have a disability and need assistance, we will try to make appropriate arrangements for you. Our offices have portable hearing loops and are wheelchair accessible.

DECISION If you can, attach a copy of the decision you want us to review. If you can’t, describe the decision briefly. For example: ‘The SSAT decided that I cannot receive a disability support pension’.

[page 113] Date the decision was made and date you received notice of the decision There are time limits for lodging an application for review of a decision. The time limit is usually 28 days after you receive the decision. For some types of decisions, it is longer. The time limit is usually stated in the information given to you about your review rights. The form asks you to tell us when the decision was made and when you received the decision. We need this information to check whether the application has been lodged within the time limit. If the time limit has expired, you can apply for an extension of time to make your application. We can extend most, but not all, time limits. You can use the following form – Application for an Extension of Time for Lodging Application for Review of Decision. It is available on our website. Decision reference You will usually find a reference number for the decision somewhere on the decision itself. By giving us this number, the relevant decision can be identified quickly. Who made the decision If you don’t attach a copy of the decision to the form, you need to tell us the name and address of the department or organisation that made the decision.

REASONS FOR APPLICATION You must tell us briefly why you want to have the decision reviewed. For example, you may think the decision is wrong and a different decision should be made. You may think that information you provided was not taken into account or the law was not applied correctly.

We cannot start the review if you do not answer this question.

TAX DECISIONS Tax decisions are reviewed in our Taxation Appeals Division and in the Small Taxation Claims Tribunal (STCT). You can choose to have your application reviewed in the STCT if the amount of tax in dispute is less than $5,000. There are some differences between the Taxation Appeals Division and the STCT. The application fee for the STCT is lower than the fee for the Taxation Appeals Division. The STCT’s procedures are designed to finalise a review more quickly. Hearings in the STCT are held in public unless we order that a hearing should be held in private. Hearings in the Taxation Appeals Division will be held in private if you ask for a private hearing. If you want to have your decision reviewed in the STCT, complete the STCT section of the form. You must write in the amount of tax that is in dispute in your case. If the amount of tax in dispute is $5,000 or more, or you do not complete the STCT section of the form, the decision will be reviewed in the Taxation Appeals Division. [page 114]

OTHER INFORMATION ABOUT APPLYING TO THE

AAT APPLICATION FEE There is no fee when you apply to us for review of some kinds of decisions. For example: applications about Commonwealth workers’ compensation, decisions under the National Disability Insurance Scheme, social security or family assistance payments or veterans’ pension decisions. For other kinds of decisions, a fee must be paid when you lodge your application. The full application fee is $861. The lower fee for the STCT is $85. You might be eligible to pay a reduced fee of $100 instead of a full application fee. For example: you hold a health care card or Commonwealth seniors health card you are able to show that you can’t afford to pay the full fee. If you have paid a full application fee and the application is resolved in your favour, most of it will be refunded. There is no refund if you paid the reduced application fee or if the decision was reviewed in the STCT. For more information about fees, including when there is no fee and whether you might be eligible to pay a reduced fee, go to the AAT website or contact your local AAT office. How to pay a fee You can pay a fee in cash or by cheque, money order, EFTPOS or credit card. We accept payment by American Express, Diners Club, MasterCard and Visa. All payment types are accepted over the counter at our offices. Credit card payments can also be made by phone.

APPLYING TO SUSPEND A DECISION In general, a decision continues to operate while we are reviewing it. In some cases, we can order that the decision be suspended while the review is taking place. If you want to ask us to suspend the operation of the decision, you must complete a Request for stay order form and send it to us. The form is available on our website.

STEPS IN A REVIEW In most cases, we use alternative dispute resolution (ADR) to help the parties – you and the department or organisation that made the decision you want reviewed – try to reach agreement about how the case should be resolved. Many cases are resolved at this stage. ADR processes are held in private. If agreement cannot be reached, we will hold a hearing and make a decision. Hearings are usually open to the public. Our procedures and the time needed to complete the review vary from case to case. We aim to have cases finalised within 12 months. [page 115]

WHAT DO WE DO WITH INFORMATION GIVEN TO US? We collect information from you to process your application and to carry out the review under the Administrative Appeals Tribunal Act 1975. We give a copy of the form to the department or organisation that made the

decision you want reviewed. We may also give a copy to any other person that is a party to the review. If you give us other information during the review that another party does not have, we will usually give them a copy. Limited information about a case is usually made available to the public on request and can be accessed using eCase Search, our online case search tool. This information includes the names of the parties and any representatives, the type of application, dates of conferences, hearings or other case events, the types of key documents lodged by the parties and the outcome of an application. More information is usually made publicly available if we hold a hearing and make a decision in the case. Most AAT decisions are published on the internet. We can order that information be kept confidential if we believe there is good reason to do so. You can apply for an order by writing to us stating what information you want kept confidential and why. In some cases, legislation requires that information be kept confidential. For more information, see our fact sheet Privacy and confidentiality at the AAT and our Privacy Policy. Our Privacy Policy includes information about how you can access and seek correction of your personal information, make a complaint about the way we have handled your personal information and how we will deal with such a complaint. Copies are available on our website or from your local AAT office.

MORE INFORMATION ABOUT THE AAT More information about the AAT and how we conduct reviews is available on our website. You can also phone your local AAT office. Our staff can give you information about procedures but will not be able to give you legal advice.

CONTACT THE AAT National 1300 number You can call us on 1300 366 700 from anywhere in Australia. You will be connected to the AAT office in your capital city. Residents of northern NSW (postcodes 2460–2490) and the Northern Territory will be connected to the Brisbane Registry. Callers from fixed phone lines will be charged at local call rates; calls from mobiles may cost more.

Non-English speakers Call the Translating and Interpreter Service on 131 450 and ask them to call us. [page 116]

If you are deaf or have a hearing or speech impairment Contact us through the National Relay Service. TTY users: call 133 677, then ask for 1300 366 700. Internet relay users: connect to the NRS, then ask for 1300 366 700. Speak and Listen (speech-to-speech relay) users: call 1300 555 727, then ask for 1300 366 700. SMS relay users: call 0423 677 767, then ask for 1300 366 700 Video relay users: choose the available NRS video relay contact on Skype, then ask for 1300 366 700. Hearing induction loops are available at our office counters, and in conference and hearing rooms.

POST AAT GPO Box 9955 Your capital city (Northern Territory residents should write to Brisbane)

AAT c/- Supreme Court of Norfolk Island Registry Kingston, Norfolk Island 2899

ADELAIDE 11 Floor Chesser House 91 Grenfell Street ADELAIDE SA 5000

BRISBANE Level 4 Commonwealth Law Courts Cnr Nth Quay & Tank St BRISBANE QLD 4000

CANBERRA Level 8 14 Moore St CANBERRA CITY ACT 2600

Fax 08 8201 0610 Email [email protected] HOBART Commonwealth Law Courts 39–41 Davey St HOBART TAS 7000

Fax 07 3361 3001 Email [email protected] MELBOURNE Level 16, HWT Tower 40 City Rd SOUTHBANK VIC 3006

Fax (02) 6243 4600 Email [email protected] NORFOLK ISLAND Supreme Court of Norfolk Island KINGSTON Norfolk Island 2899

Fax (03) 6232 1701 Email [email protected] PERTH Level 5 111 St Georges Terrace PERTH WA 6000

Fax (03) 9282 8480 Email [email protected] SYDNEY Level 7 55 Market St SYDNEY NSW 2000

Fax 6723 23403 Email [email protected]

Fax (08) 9327 7299 Fax: (02) 9283 4881 Email [email protected] Email: [email protected]

Form 1 Guide – 7/14

[page 117]

Precedent 8 Appeal to the Federal Court Against IC Review of FOI Access Refusal Decision

Appeal to the Federal Court NOTICE OF APPEAL Federal Court of Australia District Registry: [Insert state/territory] Division: [Insert division] On appeal from the Australian Information Commissioner [Insert name of Applicant] Australian Information Commissioner To the Respondent The Applicant appeals from the decision as set out in this notice of appeal. The Court will hear this appeal, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence. You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: [Registry will insert time and date] Place: [Insert address of Court] The Court ordered that the time for serving this application be abridged to [Registry will insert date, if applicable]. Date: [Insert] ________________________________________ Signed by an officer acting with the authority of the District Registrar ________________________________________________________ [page 118] Filed on behalf of (name and role of party) __________________ [Insert] Prepared by (name of person/lawyer) _______________________ [Insert] Law firm (if applicable) __________________________________ [Insert] Tel [Insert] ___________________ Fax [Insert] _____________________ Email __________________________________________________ [Insert] Address for service (include state and postcode) ________________ [Insert] [Form approved 01/08/2011] The Applicant appeals from the decision of the Australian Information Commissioner given on [Insert date] at [Insert place] . The Tribunal decided to affirm a decision of the [Insert name of agency] that the applicant was not entitled to access to documents on the ground [Insert based on the agency’s reasons for decision, eg “contained in s 47C(1) of the Freedom of Information Act 1982 (Cth)”]. The Applicant appeals from the whole of such decision on the following questions of law.

Questions of law [Insert, eg: 1.

Whether the documents to which access was sought constituted in law opinion or advice obtained by the [agency] within the meaning of s 47C(1) of the Act.

2.

Whether, by law, having regard to s 11A of the Act, the [agency] was required to give access to the requested documents (if the documents did constitute opinion or advice obtained by the [agency] within the meaning of s 47C(1)) on the ground that access was not at the time, on balance, contrary to the “public interest” as that expression is understood in law].

Orders sought 1.

The decision of the Australian Information Commissioner be declared wrong in law.

2.

An order that the Applicant be given access to the documents, namely [Insert].

Grounds relied on 1.

The decision of the Australian Information Commissioner affirming the decision of the [agency] was wrong in law.

2.

[Insert further detail of grounds relied on, eg “The Applicant is entitled to access to the documents which are not in law conditionally exempt in that they are not within the terms of s 47C(1) of the Freedom of Information Act 1982 (Cth) or if they are or were, having regard to s 11A of the same, and in particular s 11B(3), it is not contrary to the public interest that the Applicant be given access to them.”]

Applicant’s address The Applicant’s address for service is:

Place: [Insert – see Federal Court Rules 2011 (Cth) rule 11.01] Email: [Insert] [page 119] The Applicant’s address is [Insert. If the Applicant is an individual – place of residence or business; if the Applicant is a corporation – principal place of business]. Service on the Respondent [Select one of these 3 options and delete others: *It is intended to serve this application on all Respondents. *It is intended to serve this application on the following Respondents: [name of each Respondent on whom application is to be served. *It is not intended to serve this application on any Respondent.] Date: [Insert] _______________________________ capacity, eg Lawyer for the Applicant]

Signed

by

[Insert

name][Insert

Date: [Insert] _______________________________ Signed by [Name of lawyer]

© Commonwealth of Australia 2014. Reproduced with permission of the Administrative Appeals Tribunal.

[page 121]

Part 3 Freedom of Information Act 1982 Current to 1 January 2015

[page 123]

Contents Part I—Preliminary 1 2 3 3A 4 4A 4B 5 6 6A 6C 7

Short title …. Commencement …. Objects—general …. Objects—information or documents otherwise accessible …. Interpretation …. Certain legislation relating to Australian Capital Territory not to be enactment …. Extension to Norfolk Island …. Act to apply to courts in respect of administrative matters …. Act to apply to certain tribunals in respect of administrative matters …. Official Secretary to the Governor-General …. Requirement for Commonwealth contracts …. Exemption of certain persons and bodies ….

Part II—Information publication scheme Division 1—Guide to this Part 7A

Information publication scheme—guide ….

Division 2—Information to be published

8 8A 8B 8C 8D 8E

Information to be published—what information? …. Information to be published—what is operational information? …. Information to be published—accuracy etc…. Information to be published—restrictions …. Information to be published—how (and to whom) information is to be published …. Information to be published—Information Commissioner to assist agencies ….

Division 3—Review of information publication scheme 8F 9

Review of scheme—Information Commissioner functions …. Review of scheme—by agencies …. [page 124]

Division 4—Guidelines 9A

Functions and powers under this Part ….

Division 5—Miscellaneous 10 10A 10B

Unpublished operational information …. Who performs functions etc. given to agencies …. Transitional—Norfolk Island authorities ….

Part III—Access to documents 11 11A 11B 11C

Right of access …. Access to documents on request …. Public interest exemptions—factors …. Publication of information in accessed documents ….

12 13 15 15AA 15AB

Part not to apply to certain documents …. Documents in certain institutions …. Requests for access …. Extension of time with agreement …. Extension of time for complex or voluminous requests …. 15AC Decision not made on request within time—deemed refusal …. 15A Request for access to personnel records …. 16 Transfer of requests …. 17 Requests involving use of computers etc. …. 20 Forms of access …. 21 Deferment of access …. 22 Access to edited copies with exempt or irrelevant matter deleted …. 23 Decisions to be made by authorised persons …. 24 Power to refuse request—diversion of resources etc. …. 24AA When does a practical refusal reason exist? …. 24AB What is a request consultation process? …. 24A Requests may be refused if documents cannot be found, do not exist or have not been received …. 25 Information as to existence of certain documents …. 26 Reasons and other particulars of decisions to be given …. [page 125] 26A

Consultation—documents affecting CommonwealthState relations etc. …. 26AA Consultation—documents affecting Norfolk Island

27 27A 29 31

intergovernmental relations …. Consultation—business documents …. Consultation—documents affecting personal privacy …. Charges …. Decision to impose charge—extended period for processing request ….

Part IV—Exempt documents Division 1—Preliminary 31A 31B 32

Access to exempt and conditionally exempt documents …. Exempt documents for the purposes of this Part …. Interpretation ….

Division 2—Exemptions 33 34 37 38 42 45 45A 46 47

Documents affecting national security, defence or international relations …. Cabinet documents …. Documents affecting enforcement of law and protection of public safety …. Documents to which secrecy provisions of enactments apply …. Documents subject to legal professional privilege …. Documents containing material obtained in confidence …. Parliamentary Budget Office documents …. Documents disclosure of which would be contempt of Parliament or contempt of court …. Documents disclosing trade secrets or commercially valuable information ….

47A

Electoral rolls and related documents ….

Division 3—Public interest conditional exemptions 47B 47C

Public interest conditional exemptions— Commonwealth-State relations etc. …. Public interest conditional exemptions—deliberative processes …. [page 126]

47D

47E 47F 47G 47H 47J

Public interest conditional exemptions—financial or property interests of the Commonwealth or Norfolk Island …. Public interest conditional exemptions—certain operations of agencies …. Public interest conditional exemptions—personal privacy …. Public interest conditional exemptions—business …. Public interest conditional exemptions—research …. Public interest conditional exemptions—the economy ….

Part V—Amendment and annotation of personal records 48 49 50 51

Application for amendment or annotation of personal records …. Requirements of an application for amendment …. Amendment of records …. Annotations of records etc. following unsuccessful applications for amendments of records ….

51A 51B 51C 51D 51DA 51E

Requirements of an application for annotation …. Annotation of records …. Transfer of requests …. Notification etc. of a decision under this Part …. Decision not made on request for amendment or annotation within time—deemed refusal …. Comments on annotations ….

Part VI—Internal review of decisions 52 53 53A 53B 53C 54 54A 54B 54C

Internal review of decisions—guide …. Interpretation …. What is an access refusal decision? …. What is an access grant decision? …. Internal review—who is an affected third party? …. Internal review—access refusal decision …. Internal review—access grant decision …. Internal review—application for review …. Internal review—decision on internal review …. [page 127]

54D 54E

Internal review—deemed affirmation of original decision …. Internal review—decisions to which this Part does not apply ….

Part VII—Review by Information Commissioner Division 1—Guide to this Part

54F

Review by the Information Commissioner—guide ….

Division 2—Key concepts 54G 54H 54J 54K

Key concepts—what is an IC review? …. Key concepts—what is an IC review application? …. Key concepts—who is an IC review applicant? …. Key concepts—what is an IC reviewable decision? ….

Division 3—IC reviewable decisions 54L 54M

IC reviewable decisions—access refusal decisions …. IC reviewable decisions—access grant decisions ….

Division 4—IC review applications Subdivision A—Making an application 54N 54P 54Q 54R

IC review applications—application …. IC review applications—requirement to notify affected third parties …. IC review applications—circumstances in which not giving notice is appropriate …. IC review applications—withdrawal ….

Subdivision B—Time limits 54S 54T

IC review applications—time limits …. IC review applications—extension of time ….

Division 5—Decision to review 54U 54V 54W 54X

Decision to review—interpretation …. Decision to review—preliminary inquiries …. Decision to review—discretion not to review …. Decision to review—notice requirement if discretion not to review exercised ….

[page 128] 54Y

Decision to review—actual decisions made after IC review has commenced ….

Division 6—Procedure in IC review 54Z 55 55A 55B 55C 55D 55DA 55E 55F 55G 55H 55J

Procedure in IC review—general notice requirement …. Procedure in IC review—general …. Procedure in IC review—parties to proceeding …. Procedure in IC review—application for hearing …. Procedure in IC review—representation …. Procedure in IC review—onus …. Decision-maker must assist Information Commissioner …. Procedure in IC review—inadequate reasons from decision maker …. Procedure in IC review—review parties reach agreement …. Procedure in IC review—revocation or variation of access refusal decision …. Procedure in IC review—reference of questions of law to Federal Court of Australia …. Procedure in IC review—sending of documents to, and disclosure of documents by, the Federal Court of Australia ….

Division 7—Decision on IC review 55K 55L

Decision on IC review—decision of Information Commissioner …. Decision on IC review—no power to give access to exempt documents ….

55M 55N 55P 55Q

Decision on IC review—limitation on amending records …. Decision on IC review—obligation to comply with decision …. Decision on IC review—enforcement of decision against agency …. Decision on IC review—correction of errors ….

Division 8—Information gathering powers 55R 55S 55T

Information gathering powers—obliging production of information and documents …. Information gathering powers—dealings with documents …. Information gathering powers—production of exempt documents generally …. [page 129]

55U

55V 55W 55X 55Y 55Z

Information gathering powers—production of national security, Cabinet or Parliamentary Budget Office documents …. Information gathering powers—further searches for a document …. Information gathering powers—obliging persons to appear …. Information gathering powers—administration of oath or affirmation …. Information gathering powers—no loss of legal professional privilege …. Information gathering powers—protection from liability

….

Division 9—Evidence by Inspector-General of Intelligence and Security 55ZA Evidence by Inspector-General of Intelligence and Security—scope …. 55ZB Evidence by Inspector-General of Intelligence and Security—request to give evidence …. 55ZC Evidence by Inspector-General of Intelligence and Security—compliance with request …. 55ZD Evidence by Inspector-General of Intelligence and Security—procedural matters ….

Division 10—Appeals 56 56A

Appeals—appeals to Federal Court of Australia on questions of law …. Appeals—Federal Court of Australia may make findings of fact ….

Part VIIA—Review by the Tribunal Division 1—Guide to this Part 57

Review by the Tribunal—guide ….

Division 2—Tribunal reviewable decisions 57A

Tribunal reviewable decisions—which decisions are reviewable? ….

Division 3—Powers of Tribunal 58

Powers of Tribunal …. [page 130]

58A Powers of Tribunal—requiring further searches …. 58AA Powers of Tribunal—limitation on amending records ….

Division 4—Procedure in Tribunal 58B

Constitution of Tribunal for proceedings about certain exempt documents …. 58D Modification of section 42 of the Administrative Appeals Tribunal Act 1975 …. 58E Production to the Tribunal of certain exempt documents …. 60 Procedure in Tribunal—parties …. 60AA Procedure in Tribunal—requirement to notify affected third parties …. 60AB Procedure in Tribunal—circumstances in which not giving notice is appropriate …. 60A Inspector-General of Intelligence and Security must be requested to give evidence in certain proceedings …. 61 Onus …. 61A Modification of the Administrative Appeals Tribunal Act 1975 …. 62 Application of section 28 of Administrative Appeals Tribunal Act etc. ….

Division 5—Protection of information in Tribunal 63 64

Tribunal to ensure non-disclosure of certain matters …. Production of exempt documents ….

Division 6—Recommendations as to costs 66

Tribunal may make recommendation that costs be available in certain circumstances ….

Division 7—Automatic stay of certain decisions 67

Automatic stay of certain decisions on appeal ….

Part VIIB—Investigations and complaints Division 1—Guide to this Part 68

Investigations and complaints—guide …. [page 131]

Division 2—Information Commissioner investigations Subdivision A—Power to investigate 69

Information Commissioner investigations—power to investigate ….

Subdivision B—Making complaints 70

Information Commissioner investigations—making complaints ….

Subdivision C—Decision to investigate 71 72 73 74 75

Information Commissioner investigations— interpretation …. Information Commissioner investigations—preliminary inquiries …. Information Commissioner investigations—discretion not to investigate …. Information Commissioner investigations—transfer to Ombudsman …. Information Commissioner investigations—notice

requirements ….

Subdivision D—Investigation procedure 76 77 78 79 80 81 82 83 84

Information Commissioner investigations—conduct of investigation …. Information Commissioner investigations—general power to enter premises …. Information Commissioner investigations—places for which approval required before entry …. Information Commissioner investigations—obliging production of information and documents …. Information Commissioner investigations—dealings with documents …. Information Commissioner investigations—exempt documents …. Information Commissioner investigations—obliging persons to appear …. Information Commissioner investigations— administration of oath or affirmation …. Information Commissioner investigations—no loss of legal professional privilege …. [page 132]

85

Information Commissioner investigations—protection from liability ….

Subdivision E—Outcome of investigation 86

Information Commissioner investigations—notice on completion ….

87 88 89 89A 89B 89C 89D 89E

Information Commissioner investigations—what are the investigation results? …. Information Commissioner investigations—what are the investigation recommendations? …. Information Commissioner investigations—failure to implement investigation recommendation …. Information Commissioner investigations—failure to take action in response to implementation notice …. Information Commissioner investigations—requirements for report …. Information Commissioner investigations—ensuring non-disclosure of certain matters …. Information Commissioner investigations—limitation on amending records …. Information Commissioner investigations—protection from civil action ….

Division 3—Complaints to Ombudsman 89F 89G 89H 89J

Complaints to Ombudsman—powers not affected …. Complaints to Ombudsman—report must not contain certain information …. Complaints to Ombudsman—certain rights not affected by certificates …. Complaints to Ombudsman—limitation on amending records in reports under the Ombudsman Act 1976 ….

Part VIII—Miscellaneous Division 1—Vexatious applicants 89K 89L

Vexatious applicants—declaration …. Vexatious applicants—grounds for declaration ….

89M 89N

Vexatious applicants—effect of declaration …. Vexatious applicants—review by Tribunal ….

[page 133]

Division 2—General 89P 90 91 92 93 93A 93B 94

Staff to hold appropriate security clearance …. Protection against civil liability—general …. Protection against civil liability—particular situations …. Protection against criminal liability …. Agencies to provide information to Information Commissioner …. Guidelines …. Review of operation of Act …. Regulations ….

Schedule 1—Courts and tribunals exempt in respect of nonadministrative matters Schedule 2 Part I—Exempt agencies Division 1 Division 2 Part II—Agencies exempt in respect of particular documents Division 1 Division 2

Part III—Legislation relating to agencies exempt in respect of documents in relation to their commercial activities Schedule 3—Secrecy provisions Schedule 4—Research institutions Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history

[page 134]

An Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies

Part I—Preliminary 1

Short title This Act may be cited as the Freedom of Information Act 1982.

2

Commencement The several Parts of this Act shall come into operation on such respective dates as are fixed by Proclamation.

3

Objects—general

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by: (a) requiring agencies to publish the information; and (b) providing for a right of access to documents. (2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following: (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making; (b) increasing scrutiny, discussion, comment and review of the Government’s activities. (3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource. (4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

3A

Objects—information or documents otherwise

accessible Scope (1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act. [page 135] Publication and access powers not limited (2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power: (a) in the case of the power to publish the information or document— despite any restriction on the publication of the information or document under this Act; and (b) in the case of the power to give access to the information or document—whether or not access to the information or document has been requested under section 15.

4

Interpretation

(1) In this Act, unless the contrary intention appears: access grant decision has the meaning given by section 53B. access refusal decision has the meaning given by section 53A. ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988. action, if the action is taken by a person or agency, has the same meaning as in the Ombudsman Act 1976. Note:

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

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

agency means a Department, a prescribed authority or a Norfolk Island authority. applicant means a person who has made a request. Australia, when used in a geographical sense, includes Norfolk Island. Australian Geospatial-Intelligence Organisation means that part of the Department of Defence known as the Australian Geospatial-Intelligence Organisation. Australian Signals Directorate means that part of the Department of Defence known as the Australian Signals Directorate. authorised person has the meaning given by section 77. Cabinet includes: (a) a committee of the Cabinet; and (b) a body that: (i)

consists of Norfolk Island Ministers; and

(ii) corresponds to the Cabinet. [page 136] Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet, if the notes were made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973. Commission of inquiry means: (a) the Commission of inquiry within the meaning of the Quarantine Act 1908; or (b) a Commission of inquiry within the meaning of the Offshore

Petroleum and Greenhouse Gas Storage Act 2006. Commonwealth contract means a contract to which all of the following apply: (a) the Commonwealth, Norfolk Island or an agency is, or was, a party to the contract; (b) under the contract, services are, or were, to be provided: (i)

by another party; and

(ii) for or on behalf of an agency; and (iii) to a person who is not the Commonwealth, Norfolk Island or an agency; (c) the services are in connection with the performance of the functions, or the exercise of the powers, of an agency. complainant has the meaning given by subsection 70(1). conditionally exempt: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document. Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

contracted service provider, for a Commonwealth contract, means an entity that is, or was: (a) a party to the Commonwealth contract; and (b) responsible for the provision of services under the Commonwealth contract. defence intelligence document has the meaning given by paragraph 7(2C)(a). Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation. Department means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth.

[page 137] document includes: (a) any of, or any part of any of, the following things: (i)

any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph; (iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stored or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or duplicate; but does not include: (d) material maintained for reference purposes that is otherwise publicly available; or (e) Cabinet notebooks. document of an agency: a document is a document of an agency if: (a) the document is in the possession of the agency, whether created in the agency or received in the agency; or (b) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document. edited copy has the meaning given by section 22 (access to edited copies with exempt or irrelevant matter deleted).

electronic communication has the same meaning as in the Electronic Transactions Act 1999. enactment means, subject to section 4A: (a) an Act; (b) an Ordinance of the Australian Capital Territory; or (c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and includes an enactment as amended by another enactment. engage in conduct means: (a) do an act; or (b) omit to do an act. exempt content-service document means: (a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992), that: (i)

has been delivered by, or accessed using, a content service (within the meaning of that Schedule); and [page 138]

(ii) was offensive content-service content when it was delivered by, or accessed using, that content service; or (b) a document that sets out how to access, or that is likely to facilitate access to, offensive content-service content (for example, by setting out the name of a website, an IP address, a URL or a password). exempt document means: (a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or (b) a document in respect of which, by virtue of section 7, an agency,

person or body is exempt from the operation of this Act; or (c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State. exempt internet-content document means: (a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that: (i)

has been copied from the internet; and

(ii) was offensive internet content when it was accessible on the internet; or (b) a document that sets out how to access, or that is likely to facilitate access to, offensive internet content (for example: by setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup). exempt matter means matter the inclusion of which in a document causes the document to be an exempt document. Human Services Department means the Department administered by the Human Services Minister. Human Services Minister means the Minister administering the Human Services (Medicare) Act 1973. IC review has the meaning given by section 54G. IC reviewable decision has the meaning given by section 54K. IC review applicant has the meaning given by section 54J. IC review application has the meaning given by section 54H. implementation notice has the meaning given by section 89. Information Commissioner has the meaning given by the Australian Information Commissioner Act 2010. intelligence agency document has the meaning given by paragraph 7(2A)(a).

internal review has the meaning given by sections 54 and 54A. [page 139] internal review applicant has the meaning given by section 54B. investigation recommendations has the meaning given by section 88. investigation results has the meaning given by section 87. Minister includes a Norfolk Island Minister. NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed). Norfolk Island authority means: (a) a public sector agency (within the meaning of the Public Sector Management Act 2000 of Norfolk Island); or (b) a body (whether incorporated or not) established for a public purpose by or under a Norfolk Island enactment, other than a body established or registered under: (i)

the Companies Act 1985 of Norfolk Island; or

(ii) the Associations Incorporation Act 2005 of Norfolk Island; or (c) a body established or appointed by: (i)

the Administrator of Norfolk Island; or

(ii) a Norfolk Island Minister; otherwise than by or under a Norfolk Island enactment; or (d) a person holding or performing the duties of: (i)

an office established by or under a Norfolk Island enactment; or

(ii) an appointment made under a Norfolk Island enactment; or (e) a person holding or performing the duties of an appointment, where the appointment was made by:

(i)

the Administrator of Norfolk Island; or

(ii) a Norfolk Island Minister; otherwise than under a Norfolk Island enactment. Norfolk Island enactment means: (a) an enactment (within the meaning of the Norfolk Island Act 1979); or (b) an instrument (including rules, regulations or by-laws) made under such an enactment; and includes a Norfolk Island enactment as amended by another Norfolk Island enactment. Norfolk Island Minister means a Minister of Norfolk Island. offensive content-service content means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992) that is: (a) delivered by, or accessed using, a content service (within the meaning of that Schedule); and (b) either: (i)

prohibited content (within the meaning of that Schedule); or

(ii) potential prohibited content (within the meaning of that Schedule). [page 140] offensive internet content means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that is: (a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or (b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that

Act). officer, in relation to an agency, includes a member of the agency or a member of the staff of the agency. official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency. Ombudsman means the Commonwealth Ombudsman. operational information has the meaning given by section 8A. Ordinance, in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment). Parliamentary Budget Office has the same meaning as in the Parliamentary Service Act 1999. Parliamentary Budget Officer has the same meaning as in the Parliamentary Service Act 1999. personal information has the same meaning as in the Privacy Act 1988. practical refusal reason has the meaning given by section 24AA. prescribed authority means: (a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than: (i)

an incorporated company or association; or

(ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act; or (iii) the Australian Capital Territory House of Assembly; or (iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or [page 141] (vi) a Royal Commission; or (vii) a Commission of inquiry; or (aa) NBN Co; or (b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being: (i)

a body established by the Governor-General or by a Minister; or

(ii) an incorporated company or association over which the Commonwealth is in a position to exercise control; or (c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order-inCouncil; or (d) the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Council. principal officer means: (a) in relation to a Department—the person holding, or performing the

duties of, the office of Secretary of the Department; or (b) in relation to a prescribed authority: (i)

if the regulations declare an office to be the principal office of the authority—the person holding, or performing the duties of, that office;

(ii) if the authority is an Agency (within the meaning of the Public Service Act 1999) other than a Department and subparagraph (i) does not apply—the Agency Head (within the meaning of the Public Service Act 1999) of the authority; (iii) if neither subparagraph (i) nor (ii) applies—the person responsible for the day-to-day management of the authority; (iv) if the authority is constituted by one person and none of subparagraphs (i) to (iii) applies—that person; (v) if the authority is constituted by 2 or more persons and none of subparagraphs (i) to (iv) applies—the person who is entitled to preside at any meeting of the authority at which he or she is present; or (c) in relation to a Norfolk Island authority—the person holding, or performing the duties of, the office of Chief Executive Officer under the Public Sector Management Act 2000 of Norfolk Island. request means an application made under subsection 15(1). request consultation process has the meaning given by section 24AB. respondent agency has the meaning given by subsections 69(2) and 70(2). responsible Minister means: [page 142] (a) in relation to a Department—the Minister administering the

relevant Department of State; or (b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority—the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (ba) in relation to the prescribed authority referred to in paragraph (aa) of that definition—the Minister administering the National Broadband Network Companies Act 2011; or (c) in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or (d) in relation to any other prescribed authority—the Minister declared by the regulations to be the responsible Minister in respect of that authority; or (e) in relation to a Norfolk Island authority—the Chief Minister of Norfolk Island; or another Minister acting for and on behalf of that Minister. review parties has the meaning given by section 55A. run out: all of a person’s opportunities for review or appeal in relation to an access grant decision have run out when: (a) the latest time for applying for an internal review or an IC review in relation to the decision has ended, if the person has not applied for either review; or (b) if the person has applied for an internal review in relation to the decision: (i)

the internal review is concluded; and

(ii) the time for applying for an IC review of the decision on internal review has ended, if the person has not applied for the IC review; or

(c) if the person has applied for an IC review in relation to the decision: (i)

proceedings in relation to the IC review are concluded; and

(ii) the time for applying to the Tribunal for a review in relation to the decision has ended, if the person has not applied for such a review; and (iii) the time for instituting an appeal to the Federal Court in relation to the IC review has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded; or (d) if the person has applied to the Tribunal for a review in relation to the decision: (i)

proceedings in relation to the review are concluded; and

(ii) the time for instituting an appeal to the Federal Court in relation to the review by the Tribunal has ended (with no appeal [page 143] instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded. Note:

The time for applying for a review of a decision may be extended in certain circumstances (see sections 54B and 54T).

State includes the Australian Capital Territory and the Northern Territory. subcontractor, for a Commonwealth contract, means an entity: (a) that is, or was, a party to a contract (the subcontract): (i)

with a contracted service provider for the Commonwealth contract; or

(ii) with another subcontractor for the Commonwealth contract

(under a previous application of this definition); and (b) that is, or was, responsible under the subcontract for the provision of services for the purposes (whether direct or indirect) of the Commonwealth contract. Tribunal means the Administrative Appeals Tribunal. vexatious applicant declaration has the meaning given by section 89K. (2) An unincorporated body, being a board, council, committee, subcommittee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purposes of this Act, but shall be deemed to be comprised within that prescribed authority. (3) A person shall not be taken to be a prescribed authority: (a) by virtue of his or her holding: (i)

an office of member of the Legislative Assembly for the Australian Capital Territory;

(ii) an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or (iii) an office of member of the Legislative Assembly of the Territory of Norfolk Island or of Administrator or Deputy Administrator of that Territory or of Minister of Norfolk Island; or (b) by virtue of his or her holding, or performing the duties of: (i)

a prescribed office;

(ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority; (iii) an office of member of a body; or

(iv) an office established by an enactment for the purposes of a prescribed authority. (3A) If an unincorporated body consists of a board, council, committee, subcommittee or other body established by or under a Norfolk Island [page 144] enactment for the purpose of assisting, or performing functions connected with, a Norfolk Island authority: (a) the unincorporated body is taken not to be a Norfolk Island authority for the purposes of this Act; and (b) the unincorporated body is taken to be comprised within that Norfolk Island authority. (3B) A person is not taken to be a Norfolk Island authority: (a) because he or she holds: (i)

an office of member of the Legislative Assembly of Norfolk Island; or

(ii) the office of Administrator of Norfolk Island; or (iii) an office of Deputy Administrator of Norfolk Island; or (iv) an office of Norfolk Island Minister; or (b) because he or she holds, or performs the duties of: (i)

a prescribed office; or

(ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Norfolk Island authority; or (iii) an office of member of a Norfolk Island authority; or (iv) an office established by a Norfolk Island enactment for the purposes of a Norfolk Island authority.

(4) For the purposes of this Act, the Department of Defence shall be deemed to include: (a) the Defence Force; (b) the Australian Army Cadets; (c) the Australian Navy Cadets; and (d) the Australian Air Force Cadets. (5) Without limiting the generality of the expression security of the Commonwealth, that expression shall be taken to extend to: (a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and (b) the security of any communications system or cryptographic system of the Commonwealth or of another country used for: (i)

the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or

(ii) the conduct of Commonwealth.

the

international

relations

of

the

(6) Where an agency is abolished, then, for the purposes of this Act: (a) if the functions of the agency are acquired by another agency—any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency; and (b) if the functions of the agency are acquired by more than one other agency—any request made to the first-mentioned agency shall [page 145]

be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, whichever of those other agencies has acquired the functions of the first-mentioned agency to which the document the subject of the request most closely relates; and (c) if the documents of the agency are transferred to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia—any request made to the agency shall be deemed to have been made to, and any decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates. (7) If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time. (9) For the purposes of the application of the definition of responsible Minister in subsection (1), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom the Department is responsible in respect of the matter in respect of which this Act is being applied. (10) To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and: (a) a foreign government or an authority of a foreign government; or (b) an international organisation.

Note:

4A

Section 33 deals with documents affecting national security, defence or international relations.

Certain legislation relating to Australian Capital Territory not to be enactment

(1) ACT enactments are not enactments. (2) The Australian Capital Territory (Self-Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments. (3) Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments. (4) Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment. [page 146] (5) Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be.

4B

Extension to Norfolk Island

This Act extends to Norfolk Island.

5

Act to apply to courts in respect of administrative matters

Courts other than courts of Norfolk Island—general (1) For the purposes of this Act: (a) a court (other than a court of Norfolk Island) shall be deemed to be a prescribed authority; (b) the holder of a judicial office (other than a judicial office in a court

of Norfolk Island) or other office pertaining to a court (other than a court of Norfolk Island) in his or her capacity as the holder of that office, being an office established by the legislation establishing the court, shall be deemed not to be a prescribed authority and shall not be included in a Department; and (c) a registry or other office of a court (other than a court of Norfolk Island), and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court; but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature. Certain documents relating to complaint handling—Federal Court Judges (1A) This Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to a complaint handler (or a body consisting of complaint handlers): (a) exercising powers or performing functions under paragraph 15(1AA)(c) and subsection 15(1AAA) of the Federal Court of Australia Act 1976; or (b) assisting in exercising those powers or performing those functions. For this purpose complaint handler has the meaning given by that Act. Certain documents relating to complaint handling—Family Court Judges (1B) This Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to a complaint handler (or a body consisting of complaint handlers): (a) exercising powers or performing functions under paragraph 21B(1A)(c) and subsection 21B(1B) of the Family Law Act 1975; or

[page 147] (b) assisting in exercising those powers or performing those functions. For this purpose complaint handler has the meaning given by that Act. Certain documents relating to complaint handling—Judges of the Federal Circuit Court of Australia (1C) This Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to a complaint handler (or a body consisting of complaint handlers): (a) exercising powers or performing functions under paragraph 12(3) (c) and subsection 12(3AA) of the Federal Circuit Court of Australia Act 1999; or (b) assisting in exercising those powers or performing those functions. For this purpose complaint handler has the meaning given by that Act. Courts of Norfolk Island (2) For the purposes of this Act: (a) a court of Norfolk Island is taken to be a Norfolk Island authority; and (b) if a person is the holder of a judicial office in a court of Norfolk Island—the person, in his or her capacity as the holder of the office, is taken not to be a Norfolk Island authority and is not to be included in a Norfolk Island authority; and (c) if: (i)

a person is the holder of an office (other than a judicial office) that relates to a court of Norfolk Island; and

(ii) the office is established by a Norfolk Island enactment;

the person, in his or her capacity as the holder of the office, is taken not to be a Norfolk Island authority and is not to be included in a Norfolk Island authority; and (d) a registry or other office of a court of Norfolk Island, and the staff of such a registry or other office when acting in a capacity as members of that staff, are taken to be a part of the court; but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.

6

Act to apply to certain tribunals in respect of administrative matters For the purposes of this Act: (a) each tribunal, authority or body specified in Schedule 1 is deemed to be a prescribed authority; (b) the holder of an office pertaining to a tribunal, authority or body specified in Schedule 1, being an office established by the legislation establishing the tribunal, authority or body so specified in his or her capacity as the holder of that office, is not to be taken to be a prescribed authority or to be included in a Department; and [page 148] (c) a registry or other office of or under the charge of a tribunal, authority or body specified in Schedule 1, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the tribunal, authority or body so specified as a prescribed authority; but this Act does not apply to any request for access to a document of a

tribunal, authority or body so specified unless the document relates to matters of an administrative nature.

6A

Official Secretary to the Governor-General

(1) This Act does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature. (2) For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor-General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor-General.

6C

Requirement for Commonwealth contracts

(1) This section applies to an agency if a service is, or is to be, provided under a Commonwealth contract in connection with the performance of the functions or the exercise of the powers of the agency. (2) The agency must take contractual measures to ensure that the agency receives a document if: (a) the document is created by, or is in the possession of: (i)

a contracted service provider for the Commonwealth contract; or

(ii) a subcontractor for the Commonwealth contract; and (b) the document relates to the performance of the Commonwealth contract (and not to the entry into that contract); and (c) the agency receives a request for access to the document.

7

Exemption of certain persons and bodies

(1) The bodies specified in Division 1 of Part I of Schedule 2, and a person holding and performing the duties of an office specified in that Division, are to be deemed not to be prescribed authorities for the purposes of this Act.

(1A) For the purposes of the definition of agency, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2: (a) is taken not to be included in the Department of Defence (or in any other Department) for the purposes of this Act; and (b) to avoid doubt, is not an agency in its own right for the purposes of this Act. [page 149] (2) The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them. (2AA) A body corporate established by or under an Act specified in Part III of Schedule 2 is exempt from the operation of this Act in relation to documents in respect of the commercial activities of the body corporate. (2A) An agency is exempt from the operation of this Act in relation to the following documents: (a) a document (an intelligence agency document) that has originated with, or has been received from, any of the following: (i)

the Australian Secret Intelligence Service;

(ii) the Australian Security Intelligence Organisation; (iii) the Inspector-General of Intelligence and Security; (iv) the Office of National Assessments; (v) the Australian Geospatial-Intelligence Organisation; (vi) the Defence Intelligence Organisation; (vii) the Australian Signals Directorate (b) a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information.

(2B) A Minister is exempt from the operation of this Act in relation to the following documents: (a) an intelligence agency document; (b) a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information. (2C) An agency is exempt from the operation of this Act in relation to the following documents: (a) a document (a defence intelligence document) that has originated with, or has been received from, the Department of Defence and that is in respect of: (i)

the collection, reporting or analysis of operational intelligence; or

(ii) special access programs, under which a foreign government provides restricted access to technologies; (b) a document that contains a summary of, or an extract or information from, a defence intelligence document, to the extent that it contains such a summary, extract or information. (2D) A Minister is exempt from the operation of this Act in relation to the following documents: (a) a defence intelligence document; (b) a document that contains a summary of, or an extract or information from, a defence intelligence document, to the extent that it contains such a summary, extract or information. (2E) A Minister and an agency are exempt from the operation of this Act in relation to the following documents: [page 150]

(a) a document that has originated with, or has been received from, the Child Sexual Abuse Royal Commission (within the meaning of Part 4 of the Royal Commissions Act 1902) and: (i)

that contains information obtained at a private session (within the meaning of that Part); or

(ii) that relates to a private session and identifies a natural person who appeared at a private session; (b) a document that contains a summary of, or an extract or information from, a private session. (3) In subsection (2AA) and Part II of Schedule 2, commercial activities (except when used in relation to NBN Co) means: (a) activities carried on by an agency on a commercial basis in competition with persons other than governments or authorities of governments; or (b) activities, carried on by an agency, that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with persons other than governments or authorities of governments. (3A) In Part II of Schedule 2, commercial activities, when used in relation to NBN Co, means: (a) activities carried on by NBN Co on a commercial basis; or (b) activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis. (4) In subsection (2AA) and Part II of Schedule 2, a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities.

[page 151]

Part II—Information publication scheme Division 1—Guide to this Part 7A

Information publication scheme—guide This Part establishes an information publication scheme for agencies. Each agency must publish a plan showing how it proposes to implement this Part. An agency must publish a range of information including information about what the agency does and the way it does it, as well as information dealt with or used in the course of its operations, some of which is called operational information. In addition, an agency may publish other information held by the agency. Information published by an agency must be kept accurate, up-to-date and complete. An agency is not required to publish exempt matter. An agency is also not required to publish information if prohibited by another enactment. The information (or details of how to access the information) must be published on a website. If there is a

charge for accessing the information, the agency must publish details of the charge. An agency must, in conjunction with the Information Commissioner, review the operation of the scheme in the agency every 5 years (if not earlier). An agency must have regard to the objects of this Act, and guidelines issued by the Information Commissioner, in doing anything for the purposes of this Part. If operational information is not published in accordance with this Part, a person must not be subjected to any prejudice as a result of not having access to the information.

[page 152]

Division 2—Information to be published 8

Information to be published—what information?

Agency plans (1) An agency must prepare a plan showing the following: (a) what information the agency proposes to publish for the purposes of this Part; (b) how, and to whom, the agency proposes to publish information for the purposes of this Part; (c) how the agency otherwise proposes to comply with this Part. Information that must be published (2) The agency must publish the following information:

(a) the plan prepared under subsection (1); (b) details of the structure of the agency’s organisation (for example, in the form of an organisation chart); (c) as far as practicable, details of the functions of the agency, including its decision-making powers and other powers affecting members of the public (or any particular person or entity, or class of persons or entities); (d) details of the following appointments: (i)

appointments of officers of the agency that are made under Acts (other than APS employees within the meaning of the Public Service Act 1999);

(ii) appointments of officers of the agency that are made under Norfolk Island enactments (other than officers appointed or employed under the Public Sector Management Act 2000 of Norfolk Island); (e) the information in annual reports prepared by the agency that are laid before the Parliament or the Legislative Assembly of Norfolk Island; (f)

details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments may be made;

(g) information in documents to which the agency routinely gives access in response to requests under Part III (access to documents), except information of the following kinds: (i)

personal information about any individual, if it would be unreasonable to publish the information;

(ii) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;

[page 153] (iii) other information of a kind determined by the Information Commissioner under subsection (3), if it would be unreasonable to publish the information; (h) information held by the agency that is routinely provided to the Parliament or the Legislative Assembly of Norfolk Island in response to requests and orders from the Parliament or the Legislative Assembly of Norfolk Island, as the case may be; (i)

contact details for an officer (or officers) who can be contacted about access to the agency’s information or documents under this Act;

(j)

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

Note:

If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10).

(3) The Information Commissioner may, by legislative instrument, make a determination for the purposes of subparagraph (2)(g)(iii). Other information (4) The agency may publish other information held by the agency. Functions and powers (5) This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment. Definition (6) In this section: enactment includes a Norfolk Island enactment. Note 1: Note 2:

See section 8C for restrictions on the requirement to publish this information. The agency must have regard to the objects of this Act and guidelines issued

by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).

8A

Information to be published—what is operational information?

(1) An agency’s operational information is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities). Example:

The agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations.

(2) An agency’s operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency. [page 154]

8B

Information to be published—accuracy etc. An agency must ensure that information published by the agency as required or permitted by this Part is accurate, up-to-date and complete.

8C

Information to be published—restrictions

Exempt documents (1) An agency is not required under this Part to publish exempt matter. Publication prohibited or restricted by other legislation (2) If an enactment restricts or prohibits the publication of particular information, an agency is not required under this Part to publish the information otherwise than as permitted or required by the enactment.

Operation of restrictions (3) This section applies despite section 8. Definition (4) In this section: enactment includes a Norfolk Island enactment.

8D

Information to be published—how (and to whom) information is to be published

Scope (1) An agency must publish information that is required or permitted to be published under this Part in accordance with this section. How (and to whom) information is to be published (2) The agency must publish the information: (a) to members of the public generally; and (b) if the agency considers that it is appropriate to do so—to particular classes of persons or entities. (3) The agency must publish the information on a website by: (a) making the information available for downloading from the website; or (b) publishing on the website a link to another website, from which the information can be downloaded; or (c) publishing on the website other details of how the information may be obtained. [page 155] Charges (4) The agency may impose a charge on a person for accessing the

information only if: (a) the person does not directly access the information by downloading it from the website (or another website); and (b) the charge is to reimburse the agency for specific reproduction costs, or other specific incidental costs, incurred in giving the person access to that particular information. (5) If there is a charge for accessing the information, the agency must publish details of the charge in the same way as the information is published under this section. Note 1:

Note 2:

8E

The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A). After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C).

Information to be published—Information Commissioner to assist agencies The Information Commissioner may provide appropriate assistance to an agency in: (a) identifying and preparing information which is required or permitted to be published under this Part; and (b) determining how (and to whom) the information is required or permitted to be published under section 8D.

Division 3—Review of information publication scheme 8F

Review of scheme—Information Commissioner functions The Information Commissioner has the following functions (as

conferred by this Act and the Australian Information Commissioner Act 2010, but without limiting any provision of either Act): (a) reviewing the operation in each agency of the information publication scheme established by this Part, in conjunction with the agency; (b) investigating an agency’s compliance with this Part under Division 2 of Part VIIB (Information Commissioner investigations); (c) otherwise monitoring, investigating and reporting on the operation of the scheme. [page 156]

9

Review of scheme—by agencies

(1) An agency must, in conjunction with the Information Commissioner, complete a review of the operation, in the agency, of the information publication scheme established by this Part: (a) as appropriate from time to time; and (b) in any case—within 5 years after the last time a review under this section was completed. (2) The first review under subsection (1) must be completed within 5 years after the day this section commences. Note 1:

Note 2:

This section commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences. The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).

Division 4—Guidelines

9A

Functions and powers under this Part In performing a function, or exercising a power, under this Part, an agency must have regard to: (a) the objects of this Act (including all the matters set out in sections 3 and 3A); and (b) guidelines issued by the Information Commissioner for the purposes of this paragraph under section 93A.

Division 5—Miscellaneous 10

Unpublished operational information

Scope (1) This section applies if: (a) part (or all) of an agency’s operational information (the unpublished information), in relation to a function or power of the agency, is not published by the agency in accordance with this Part; and (b) a person engages in conduct relevant to the performance of the function or the exercise of the power; and (c) at the time of engaging in that conduct: (i)

the person was not aware of the unpublished information; and

(ii) the agency had been in existence for more than 12 months. Note:

An agency’s operational information is required to be published by the agency (see sections 8 and 8A).

[page 157] No prejudice from lack of awareness of unpublished information (2) The person must not be subjected to any prejudice only because of the

application to that conduct of any rule, guideline or practice in the unpublished information, if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information.

10A

Who performs functions etc. given to agencies

(1) A function or power given to an agency under this Part may be performed or exercised, on behalf of the agency, by: (a) the principal officer of the agency; or (b) an officer of the agency acting within the scope of his or her authority in accordance with arrangements approved by the principal officer of the agency. (2) The performance or exercise of a function or power under paragraph (1) (b) is subject to the regulations.

10B

Transitional—Norfolk Island authorities This Part does not apply to a Norfolk Island authority at any time during the 2-year period beginning at the commencement of this section.

[page 158]

Part III—Access to documents 11

Right of access

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document. (2) Subject to this Act, a person’s right of access is not affected by: (a) any reasons the person gives for seeking access; or (b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

11A

Access to documents on request

Scope (1) This section applies if: (a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to: (i)

a document of the agency; or

(ii) an official document of the Minister; and (b) any charge that, under the regulations, is required to be paid before access is given has been paid. (2) This section applies subject to this Act. Note:

Other provisions of this Act are relevant to decisions about access to documents, for example the following: (a) section 12 (documents otherwise available); (b) section 13 (documents in national institutions); (c) section 15A (personnel records); (d) section 22 (access to edited copies with exempt or irrelevant matter deleted).

Mandatory access—general rule (3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section. Exemptions and conditional exemptions (4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document. Note:

Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects— information or documents otherwise accessible)).

(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) [page 159] access to the document at that time would, on balance, be contrary to the public interest. Note 1: Note 2:

Note 3:

Division 3 of Part IV provides for when a document is conditionally exempt. A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)). Section 11B deals with when it is contrary to the public interest to give a person access to the document.

(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both: (a) a conditionally exempt document; and (b) an exempt document: (i)

under Division 2 of Part IV (exemptions); or

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

exempt document in subsection 4(1).

11B

Public interest exemptions—factors

Scope (1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). (2) This section does not limit subsection 11A(5). Factors favouring access (3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; (d) allow a person to access his or her own personal information. Irrelevant factors (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest: (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; (aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island; [page 160]

(b) access to the document could result in any person misinterpreting or misunderstanding the document; (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; (d) access to the document could result in confusion or unnecessary debate. Guidelines (5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.

11C

Publication of information in accessed documents

Scope (1) This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following: (a) personal information about any person, if it would be unreasonable to publish the information; (b) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information; (c) other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information; (d) any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c).

The Information Commissioner may, by legislative instrument, make a (2) determination for the purposes of paragraph (1)(c). Publication (3) The agency, or the Minister, must publish the information to members of the public generally on a website by: (a) making the information available for downloading from the website; or (b) publishing on the website a link to another website, from which the information can be downloaded; or (c) publishing on the website other details of how the information may be obtained. [page 161] (4) The agency may impose a charge on a person for accessing the information only if: (a) the person does not directly access the information by downloading it from the website (or another website); and (b) the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information. (5) If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section. Time limit for publication (6) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document. (7) In this section:

working day means a day that is not: (a) a Saturday; or (b) a Sunday; or (c) a public holiday in the place where the function of publishing the information under this section is to be performed.

12

Part not to apply to certain documents

(1) A person is not entitled to obtain access under this Part to: (a) a document, or a copy of a document, which is, under the Archives Act 1983, within the open access period within the meaning of that Act unless the document contains personal information (including personal information about a deceased person); or (b) a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge; or (ba) a document that is open to public access, as part of a land title register, in accordance with a law of a State or Territory where that access is subject to a fee or other charge; or (c) a document that is available for purchase by the public in accordance with arrangements made by an agency. (2) A person is not entitled to obtain access under this Part to a document or a part of a document that became: (a) a document of a Norfolk Island agency; or (b) an official document of a Norfolk Island Minister; more than 5 years before the commencement of this subsection unless: (c) the document, or that part of the document, contains information that is: (i)

personal information about that person; or

[page 162] (ii) information relating to that person’s business, commercial or financial affairs; or (d) the document, or that part of the document, is a document or a part of a document access to which is reasonably necessary to enable a proper understanding of: (i)

a document of a Norfolk Island agency; or

(ii) an official document of a Norfolk Island Minister; to which that person has lawfully had access. (3) In this section: enactment includes a Norfolk Island enactment.

13

Documents in certain institutions

(1) A document shall not be deemed to be a document of an agency for the purposes of this Act by reason of its being: (a) in the memorial collection within the meaning of the Australian War Memorial Act 1980; or (b) in the collection of library material maintained by the National Library of Australia; or (c) material included in the historical material in the possession of the Museum of Australia; or (d) in the care (within the meaning of the Archives Act 1983) of the National Archives of Australia (otherwise than as a document relating to the administration of the National Archives of Australia); or (e) a program or related material (within the meaning of the National Film and Sound Archive of Australia Act 2008) in the collection of the National Film and Sound Archive of Australia; if the document was placed in that collection, or in that custody, by or

on behalf of a person (including a Minister or former Minister) other than an agency. (2) For the purposes of this Act, a document that has been transferred to the care (within the meaning of the Archives Act 1983) of the National Archives of Australia, or otherwise placed in a collection referred to in subsection (1), by an agency shall be deemed to be in the possession of that agency or, if that agency no longer exists, the agency to the functions of which the document is most closely related. (3) Despite subsections (1) and (2): (a) records of a Royal Commission that are in the care (within the meaning of the Archives Act 1983) of the National Archives of Australia are, for the purposes of this Act, taken to be documents of an agency and to be in the possession of the Department administered by the Minister administering the Royal Commissions Act 1902; and (b) records of the Commission of inquiry (within the meaning of the Quarantine Act 1908) that are in the custody of the Australian Archives are, for the purposes of this Act, taken to be documents of an agency [page 163] and to be in the possession of the Department administered by the Minister administering the Quarantine Act 1908; and (c) records of a Commission of inquiry (within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that are in the custody of the Australian Archives are, for the purposes of this Act, taken to be documents of an agency and to be in the possession of the Department administered by the Minister administering the Offshore Petroleum and Greenhouse Gas Storage

Act 2006. (4) Nothing in this Act affects the provision of access to documents by the National Archives of Australia in accordance with the Archives Act 1983.

15

Requests for access

Persons may request access (1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document. Requirements for request (2) The request must: (a) be in writing; and (aa) state that the request is an application for the purposes of this Act; and (b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and (c) give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication). (2A) The request must be sent to the agency or Minister. The request may be sent in any of the following ways: (a) delivery to an officer of the agency, or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; (b) postage by pre-paid post to an address mentioned in paragraph (a); (c) sending by electronic communication to an electronic address specified by the agency or Minister.

Agency required to assist (3) Where a person: (a) wishes to make a request to an agency; or (b) has made to an agency a request that does not comply with this section; it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section. [page 164] Note:

An agency or Minister may refuse to deal with a request if satisfied that a practical refusal reason exists, after undertaking the request consultation process (see section 24).

(4) Where a person has directed to an agency a request that should have been directed to another agency or to a Minister, it is the duty of the first-mentioned agency to take reasonable steps to assist the person to direct the request to the appropriate agency or Minister. Timeframes for dealing with request (5) On receiving a request, the agency or Minister must: (a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and (b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).

In making a decision on a request, the agency or Minister must have (5A) regard to any guidelines issued by the Information Commissioner for the purposes of section 93A. Extension of processing period to comply with requirements of section 26A, 26AA, 27 or 27A (6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 26AA, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b): (a) the period is extended by a further period of 30 days; and (b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended. Extension of processing period to consult foreign entity (7) Subsection (8) applies if, in relation to a request, the agency or Minister determines in writing that it is appropriate to extend the period referred to in paragraph (5)(b) so that the agency or Minister can: (a) consult one of the following: (i)

a foreign government;

(ii) an authority of a foreign government; (iii) an international organisation; and (b) determine whether the document that is the subject of the request is an exempt document under subparagraph 33(a)(iii) or paragraph 33(b). [page 165] (8) If this subsection applies: (a) the period referred to in paragraph (5)(b) is extended by a period of 30 days; and

(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been extended.

15AA Extension of time with agreement An agency or Minister may extend the period referred to in paragraph 15(5) (b) for dealing with a request, or that period as extended under subsection 15(6) or (8) (consultation), by a further period of no more than 30 days if: (a) the applicant agrees in writing to the extension; and (b) the agency or Minister gives written notice of the extension to the Information Commissioner as soon as practicable after the agreement is made.

15AB Extension of time for complex or voluminous requests (1) An agency or Minister may apply to the Information Commissioner for an extension of the period referred to in paragraph 15(5)(b) for dealing with a request if the agency or Minister considers that the period is insufficient to deal adequately with a request because the request is complex or voluminous. (2) If the Information Commissioner is satisfied that the application is justified, the Information Commissioner may, by written instrument, extend the period by a further period of 30 days, or such other period as the Information Commissioner considers appropriate. Note:

For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.

(3) The Information Commissioner must, as soon as practicable, inform the following persons of the period for which the extension has been given: (a) the applicant; (b) the agency or Minister.

15AC Decision not made on request within time— deemed refusal

Scope (1) This section applies if: (a) a request has been made to an agency or Minister; and (b) the period (the initial decision period) covered by subsection (2) has ended since the day the request was received by, or on behalf of, the agency or Minister; and (c) notice of a decision on the request has not been received by the applicant. [page 166] (2) The initial decision period covered by this subsection is the period of 30 days mentioned in paragraph 15(5)(b) (or that period as extended, otherwise than under this section). Deemed refusal (3) Subject to this section: (a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to give access to the document on the last day of the initial decision period; and (b) notice of the decision is taken to have been given under section 26 to the applicant on the same day. Agency or Minister may apply for further time (4) However, the agency or Minister concerned may apply, in writing, to the Information Commissioner for further time to deal with the request. (5) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency or Minister to deal with the request. (6) If the Information Commissioner allows further time, the Information

Commissioner may impose any condition that he or she considers appropriate. (7) Subsection (3) (deemed refusal) does not apply, and is taken never to have applied, if the agency or Minister: (a) makes a decision on the request within the further time allowed; and (b) complies with any condition imposed under subsection (6). (8) However, subsection (3) (deemed refusal) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (5) if the agency or Minister: (a) does not make a decision on the request within the further time allowed; or (b) does not comply with any condition imposed under subsection (6). No further time allowed (9) If subsection (8) (deemed refusal after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (3) in its operation as affected by subsection (8).

15A

Request for access to personnel records

(1) In this section: personnel records, in relation to an employee or former employee of an agency, means those documents containing personal information about him or her that are, or have been, kept by the agency for personnel management purposes. [page 167] (2) Where:

(a)

there are established procedures in an agency (apart from those provided for by this Act) in accordance with which a request may be made by an employee of the agency for access to his or her personnel records; and

(b) a person who is or was an employee of the agency wishes to obtain access to his or her personnel records; the person must not apply under section 15 for access to such records unless the person: (c) has made a request for access to the records in accordance with the procedures referred to in paragraph (a); and (d) either: (i)

is not satisfied with the outcome of the request; or

(ii) has not been notified of the outcome within 30 days after the request was made.

16

Transfer of requests

(1) Where a request is made to an agency for access to a document and: (a) the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or (b) the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made; the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency. (2) Where a request is made to an agency for access to a document that: (a) originated with, or has been received from, a body which, or person who, is specified in Part I of Schedule 2; and (b) is more closely connected with the functions of that body or person than with those of the agency to which the request is made; the request shall be transferred:

(c) to the Department corresponding to the Department of State administered by the Minister who administers the enactment by or under which the body or person is established, continued in existence or appointed; or (d) if the request relates to a document that originated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2—to that Department. (3) Where a request is made to an agency for access to a document that: (a) originated in, or has been received from, another agency, being an agency specified in Part II of Schedule 2 or an agency that is a body corporate established by or under an Act specified in Part III of Schedule 2; and (b) is more closely connected with the functions of the other agency in relation to documents in respect of which the other agency is exempt [page 168] from the operation of this Act than with the functions of the agency to which the request is made; the agency to which the request is made shall transfer the request to the other agency. (3A) Where: (a) a request is made to an agency for access to more than one document; and (b) one or more of those documents is a document to which subsection (1), (2) or (3) applies; this section applies to each of those documents as if separate requests for

access had been made to the agency in respect of each of those documents. (4) Where a request is transferred to an agency in accordance with this section, the agency making the transfer shall inform the person making the request accordingly and, if it is necessary to do so in order to enable the other agency to deal with the request, send the document to the other agency. (5) Where a request is transferred to an agency in accordance with this section, the request is to be taken to be a request: (a) made to the agency for access to the document that is the subject of the transfer; and (b) received by the agency at the time at which it was first received by an agency. (6) In this section, agency includes a Minister.

17

Requests involving use of computers etc.

(1) Where: (a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency; (b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and (ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and (c) the agency could produce a written document containing the information in discrete form by: (i)

the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored

information; or (ii) the making of a transcript from a sound recording held in the agency; [page 169] the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession. (2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

20

Forms of access

(1) Access to a document may be given to a person in one or more of the following forms: (a) a reasonable opportunity to inspect the document; (b) provision by the agency or Minister of a copy of the document; (c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images; (d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document. (2) Subject to subsection (3) and to section 22, where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the giving of access in the form requested by the applicant: (a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his or her functions, as the case may be; (b) would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate; or (c) would, but for this Act, involve an infringement of copyright (other than copyright owned by the Commonwealth, an agency, Norfolk Island or a State) subsisting in matter contained in the document, being matter that does not relate to the affairs of an agency or of a Department of State; access in that form may be refused and access given in another form. (4) Subject to subsection 17(1), where a person requests access to a document in a particular form and, for a reason specified in subsection (3), access in that form is refused but access is given in another form, the applicant shall not be required to pay a charge in respect of the provision of access to the document that is greater than the charge that he or she would have been required to pay if access had been given in the form requested. [page 170]

21

Deferment of access

(1) An agency which, or a Minister who, receives a request may defer the provision of access to the document concerned: (a) if the publication of the document concerned is required by law— until the expiration of the period within which the document is required to be published; or

(b) if the document concerned has been prepared for presentation to Parliament or for the purpose of being made available to a particular person or body or with the intention that it should be so made available—until the expiration of a reasonable period after its preparation for it to be so presented or made available; or (c) if the premature release of the document concerned would be contrary to the public interest—until the occurrence of any event after which or the expiration of any period of time beyond which the release of the document would not be contrary to the public interest; or (d) if a Minister considers that the document concerned is of such general public interest that the Parliament should be informed of the contents of the document before the document is otherwise made public—until the expiration of 5 sitting days of either House of the Parliament; or (e) if: (i)

the request is received by a Norfolk Island Minister or a Norfolk Island authority; and

(ii) a Norfolk Island Minister considers that the document concerned is of such general public interest that the Legislative Assembly of Norfolk Island should be informed of the contents of the document before the document is otherwise made public; until the end of 5 sitting days of the Legislative Assembly of Norfolk Island. (2) Where the provision of access to a document is deferred in accordance with subsection (1), the agency or Minister shall, in informing the applicant of the reasons for the decision, indicate, as far as practicable, the period for which the deferment will operate.

22

Access to edited copies with exempt or irrelevant

matter deleted Scope (1) This section applies if: (a) an agency or Minister decides: (i)

to refuse to give access to an exempt document; or

(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and [page 171] (b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that: (i)

access to the edited copy would be required to be given under section 11A (access to documents on request); and

(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and (c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to: (i)

the nature and extent of the modification; and

(ii) the resources available to modify the document; and (d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy. Access to edited copy (2) The agency or Minister must: (a) prepare the edited copy as mentioned in paragraph (1)(b); and

(b) give the applicant access to the edited copy. Notice to applicant (3) The agency or Minister must give the applicant notice in writing: (a) that the edited copy has been prepared; and (b) of the grounds for the deletions; and (c) if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act. (4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.

23

Decisions to be made by authorised persons

(1) Subject to subsection (2), a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or the principal officer of the agency. (2) A decision in respect of a request made to a court, or made to a tribunal, authority or body that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body by the principal officer of that court, tribunal, authority or body or, subject to the regulations, by an officer of that court, tribunal, authority or body acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the principal officer of that court, tribunal, authority or body. [page 172]

24

Power to refuse request—diversion of resources etc.

(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister: (a) must undertake a request consultation process (see section 24AB); and (b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists—the agency or Minister may refuse to give access to the document in accordance with the request. (2) For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that: (a) the requests relate to the same document or documents; or (b) the requests relate to documents, the subject matter of which is substantially the same.

24AA When does a practical refusal reason exist? (1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies: (a) the work involved in processing the request: (i)

in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or

(ii) in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister’s functions; (b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).

Subject to subsection (3), but without limiting the matters to which the (2) agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following: (a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; (b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for: (i)

examining the document; or

(ii) consulting with any person or body in relation to the request; (c) making a copy, or an edited copy, of the document; (d) notifying any interim or final decision on the request. (3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to: (a) any reasons that the applicant gives for requesting access; or (b) the agency’s or Minister’s belief as to what the applicant’s reasons are for requesting access; or [page 173] (c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.

24AB What is a request consultation process? Scope (1) This section sets out what is a request consultation process for the purposes of section 24.

Requirement to notify (2) The agency or Minister must give the applicant a written notice stating the following: (a) an intention to refuse access to a document in accordance with a request; (b) the practical refusal reason; (c) the name of an officer of the agency or member of staff of the Minister (the contact person) with whom the applicant may consult during a period; (d) details of how the applicant may contact the contact person; (e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice. Assistance to revise request (3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists. (4) For the purposes of subsection (3), reasonable steps includes the following: (a) giving the applicant a reasonable opportunity to consult with the contact person; (b) providing the applicant with any information that would assist the applicant to revise the request. Extension of consultation period (5) The contact person may, with the applicant’s agreement, extend the consultation period by written notice to the applicant. Outcome of request consultation process

(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister: (a) withdraw the request; (b) make a revised request; (c) indicate that the applicant does not wish to revise the request. [page 174] (7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if: (a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or (b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period. Consultation period to be disregarded in calculating processing period (8) The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b). Note:

Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a decision on the applicant’s request within 30 days after the request is made.

No more than one request consultation process required (9) To avoid doubt, this section only obliges the agency or Minister to undertake a request consultation process once for any particular request.

24A

Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1) An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i)

is in the agency’s or Minister’s possession but cannot be found; or

(ii) does not exist. Document not received as required by contract (2) An agency may refuse a request for access to a document if: (a) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and (b) the agency has not received the document; and (c) the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.

25

Information as to existence of certain documents

(1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document, [page 175] if included in a document of an agency, would cause the last-mentioned document to be: (a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or (b) an exempt document to the extent referred to in subsection 45A(2) or (3). (2) If a request relates to a document that is, or if it existed would be, of a

kind referred to in subsection (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister (as the case may be) neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be: (a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or (b) an exempt document to the extent referred to in subsection 45A(2) or (3). (3) If a notice is given under subsection (2) of this section: (a) section 26 applies as if the decision to give the notice were a decision referred to in that section; and (b) the decision is taken, for the purposes of Part VI, to be a decision refusing to grant access to the document in accordance with the request referred to in subsection (2) of this section, for the reason that the document would, if it existed, be: (i)

an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or

(ii) an exempt document to the extent referred to in subsection 45A(2) or (3).

26

Reasons and other particulars of decisions to be given

(1) Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision-maker shall cause the applicant to be given notice in writing of the decision, and the notice shall: (a) state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision; and

(aa) in the case of a decision to refuse to give access to a conditionally exempt document—include in those reasons the public interest factors taken into account in making the decision; and Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

(b) where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and [page 176] (c) give to the applicant appropriate information concerning: (i)

his or her rights with respect to review of the decision;

(ii) his or her rights to make a complaint to the Information Commissioner in relation to the decision; and (iii) the procedure for the exercise of the rights referred to in subparagraphs (i) and (ii); including (where applicable) particulars of the manner in which an application for internal review (Part VI) and IC review (Part VII) may be made. (1A) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsection (1). (2) A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.

26A

Consultation—documents affecting CommonwealthState relations etc.

Scope (1) This section applies if:

arrangements have been entered into between the Commonwealth (a) and a State about consultation under this section; and (b) a request is made to an agency or Minister for access to a document that: (i)

originated with, or was received from, the State or an authority of the State; or

(ii) contains information (State-originated information) that originated with, or was received from, the State or an authority of the State; and (c) it appears to the agency or Minister that the State may reasonably wish to contend that: (i)

the document is conditionally exempt under section 47B (Commonwealth-State relations etc.); and

(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Consultation required (2) The agency or Minister must not decide to give the applicant access to the document unless consultation has taken place between the Commonwealth and the State in accordance with the arrangements. [page 177] Decision to give access (3) If, after such consultation has taken place, the agency or Minister decides to give the applicant access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the State;

(b) the applicant. Access not to be given until review or appeal opportunities have run out (4) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the State for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed. Note 1:

The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).

Note 2:

Edited copies and State-originated information (5) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing State-originated information —to the extent to which the document contains such information. Definition (6) In this section: State includes Norfolk Island.

26AA Consultation—documents affecting Norfolk Island intergovernmental relations Scope (1) This section applies if: (a) either: (i)

arrangements have been entered into between Norfolk Island and the Commonwealth about consultation under this section; or

(ii) arrangements have been entered into between Norfolk Island and a State about consultation under this section; and (b) if subparagraph (a)(i) applies—a request is made to a Norfolk Island authority or Norfolk Island Minister for access to a document that: (i)

originated with, or was received from, the Commonwealth or an authority of the Commonwealth; or [page 178]

(ii) contains information (Commonwealth-originated information) that originated with, or was received from, the Commonwealth or an authority of the Commonwealth; and (c) if subparagraph (a)(ii) applies—a request is made to a Norfolk Island authority or Norfolk Island Minister for access to a document that: (i)

originated with, or was received from, the State or an authority of the State; or

(ii) contains information (State-originated information) that originated with, or was received from, the State or an authority of the State; and (d) if subparagraph (a)(i) applies—it appears to the Norfolk Island authority or Norfolk Island Minister that the Commonwealth may reasonably wish to contend that: (i)

the document is conditionally exempt under section 47B (Commonwealth-State relations etc.); and

(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5); and (e) if subparagraph (a)(ii) applies—it appears to the Norfolk Island

authority or Norfolk Island Minister that the State may reasonably wish to contend that: (i)

the document is conditionally exempt under section 47B (Commonwealth-State relations etc.); and

(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Consultation required (2) The Norfolk Island authority or Norfolk Island Minister must not decide to give the applicant access to the document unless consultation has taken place between: (a) if subparagraph (1)(a)(i) applies—Norfolk Island and the Commonwealth in accordance with the arrangements mentioned in that subparagraph; or (b) if subparagraph (1)(a)(ii) applies—Norfolk Island and the State in accordance with the arrangements mentioned in that subparagraph. Decision to give access (3) If, after such consultation has taken place, the Norfolk Island authority or Norfolk Island Minister decides to give the applicant access to the document, the Norfolk Island authority or Norfolk Island Minister must give written notice of the decision to: (a) if subparagraph (1)(a)(i) applies—the Commonwealth; and (b) if subparagraph (1)(a)(ii) applies—the State; and (c) in any case—the applicant. [page 179]

Access not to be given until review or appeal opportunities have run out (4) However, the Norfolk Island authority or Norfolk Island Minister must not give the applicant access to the document unless, after all the opportunities of: (a) if subparagraph (1)(a)(i) applies—the Commonwealth; or (b) if subparagraph (1)(a)(ii) applies—the State; for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed. Note 1:

Note 2:

The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).

Edited copies, Commonwealth-originated information and Stateoriginated information (5) This section applies: (a) in relation to an edited copy of a document in the same way as it applies to the document; and (b) in relation to a document containing Commonwealth-originated information—to the extent to which the document contains such information; and (c) in relation to a document containing State-originated information —to the extent to which the document contains such information.

27

Consultation—business documents

Scope (1) This section applies if: (a) a request is made to an agency or Minister for access to a document containing information (business information) covered by subsection (2) in respect of a person, organisation or undertaking;

and (b) it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned) might reasonably wish to make a contention (the exemption contention) that: (i)

the document is exempt under section 47 (trade secrets etc.); or

(ii) the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). [page 180] Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

(2) This subsection covers the following information: (a) in relation to a person—information about the person’s business or professional affairs; (b) in relation to an organisation or undertaking—information about the business, commercial or financial affairs of the organisation or undertaking. (3) In determining, for the purposes of paragraph (1)(b), whether the person or organisation concerned might reasonably wish to make an exemption contention because of business information in a document, the agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;

(c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. Opportunity to make submissions (4) The agency or Minister must not decide to give access to the document unless: (a) the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and (b) the agency or the Minister has regard to any submissions so made. (5) However, subsection (4) only applies if it is reasonably practicable for the agency or Minister to give the person or organisation concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)). Notice of decision to give access (6) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the person or organisation concerned; (b) the applicant. Access not to be given until review or appeal opportunities have run out (7) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person or organisation concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.

[page 181] Note 1:

Note 2:

The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).

Notice and stay of decision not to apply unless submission made in support of exemption contention (8) Subsections (6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph (4)(a). Edited copies and business information (9) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing business information—to the extent to which the document contains such information.

27A

Consultation—documents affecting personal privacy

Scope (1) This section applies if: (a) a request is made to an agency or Minister for access to a document containing personal information about a person (including a person who has died); and (b) it appears to the agency or Minister that the person or the person’s legal personal representative (the person concerned) might reasonably wish to make a contention (the exemption contention) that: (i)

the document is conditionally exempt under section 47F; and

(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

(2) In determining, for the purposes of paragraph (1)(b), whether the person concerned might reasonably wish to make an exemption contention because of personal information in a document, the agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the information; (c) the availability of the information from publicly accessible sources; [page 182] (d) any other matters that the agency or Minister considers relevant. Opportunity to make submissions (3) The agency or Minister must not decide to give the applicant access to the document unless: (a) the person concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and (b) the agency or the Minister has regard to any submissions so made. (4) However, subsection (3) only applies if it is reasonably practicable for the agency or Minister to give the person concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)).

Decision to give access (5) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the person concerned; (b) the applicant. Access not to be given until review or appeal opportunities have run out (6) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed. Note 1:

Note 2:

The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).

Notice and stay of decision not to apply unless submission made in support of exemption contention (7) Subsections (5) and (6) do not apply unless the person concerned makes a submission in support of the exemption contention as allowed under paragraph (3)(a). Edited copies and personal information (8) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing personal information—to the extent to which the document contains such information.

[page 183]

29

Charges

(1) Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice stating: (a) that the applicant is liable to pay a charge; and (b) the agency’s or Minister’s preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and (c) that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not imposed; and (d) the matters that the agency or Minister must take into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and (e) the amount of any deposit that the agency or Minister has determined, under the regulations, that the applicant will be required to pay if the charge is imposed; and (f)

that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing: (i)

of the applicant’s agreement to pay the charge; or

(ii) if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both—that the applicant so contends, giving the applicant’s reasons for so contending; or (iii) that the applicant withdraws the request for access to the document concerned; and (g) that if the applicant fails to give the agency or Minister such a

notice within that period or further period, the request for access to the document will be taken to have been withdrawn. (2) If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant is to be taken to have withdrawn the request for access to the document concerned. (3) An agency or Minister must not impose a charge in respect of a request for access to a document, or the provision of access to a document, until: (a) the applicant has notified the agency or Minister in a manner mentioned in paragraph (1)(f); or (b) the end of the period or further period mentioned in that paragraph. (4) Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed. [page 184] (5) Without limiting the matters the agency or Minister may take into account in determining whether or not to reduce or not to impose the charge, the agency or Minister must take into account: (a) whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and (b) whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public. (6) If the applicant has notified the agency or Minister in the manner

mentioned in subparagraph (1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant to be notified of the decision on the amount of charge payable as soon as practicable but in any case no later than 30 days after the day on which the applicant so notified the agency or Minister. (7) If: (a) that period of 30 days has elapsed since the day on which the agency or Minister was so notified; and (b) the applicant has not received notice of a decision on the amount of charge payable; the principal officer of the agency, or the Minister, as the case requires, is, for all purposes of this Act, taken to have made, on the last day of the period, a decision to the effect that the amount of charge payable is the amount equal to the agency’s or Minister’s preliminary assessment of the amount of the charge mentioned in paragraph (1)(b). (8) If: (a) the applicant makes a contention about a charge as mentioned in subsection (4); and (b) the agency or Minister makes a decision to reject the contention, in whole or in part; the agency or Minister, as the case requires, must give the applicant written notice of the decision and of the reasons for the decision. Note:

Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

(9) A notice under subsection (8) must also state the name and designation of the person making the decision and give the applicant appropriate information about: (a) his or her rights with respect to review of the decision; and (b) his or her rights to make a complaint to the Information Commissioner in relation to the decision; and

(c) the procedure for the exercise of those rights; including (where applicable) particulars of the manner in which an application for internal review (Part VI) and IC review (Part VII) may be made. [page 185] (10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsection (8). (11) A notice under subsection (8) is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.

31

Decision to impose charge—extended period for processing request

Scope (1) This section applies if: (a) on a particular day (the charge notice day) an applicant in relation to a request receives a notice under subsection 29(1) or (6) to the effect that the applicant is liable to pay a charge in respect of the request; and (b) the notice is received before the end of the period (the processing period) applicable under paragraph 15(5)(b) in relation to the request (or that period as extended). Processing period to be calculated disregarding period when charge unpaid (2) In working out the length of the processing period (or that period as extended) for the purposes of paragraph 15(5)(b), disregard the number of days in the period starting on the charge notice day and ending on the

earliest occurring of the following days: (a) the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations), whether or not the decision to impose the charge has been considered under section 29, or is the subject of a review under this Act; (b) if the amount of the charge is changed under section 29, or following a review under this Act—the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations) as changed following the review; (c) if, under section 29, or following a review under this Act, a decision is made with the effect that the charge is not imposed—the day the applicant is notified of the decision. Note:

A decision under section 29 relating to the imposition of a charge or the amount of a charge may be the subject of an internal review (see Part VI), an IC review (see Part VII) or review by the Tribunal (see Part VIIA).

[page 186]

Part IV—Exempt documents Division 1—Preliminary 31A

Access to exempt and conditionally exempt documents

The following table summarises how this Act applies to exempt documents and documents that are conditionally exempt: How this Act applies to exempt and conditionally exempt documents Item If … then … 1 a document is an exempt access to the document is document under Division 2 not required to be given (exemptions) or under paragraph (b) or (c) of the definition of exempt document in subsection 4(1) 2 a document is a access to the document is conditionally exempt required to be given, unless document under Division 3 it would be contrary to the (public interest conditional public interest exemptions) 3 a document is an exempt access to the document is document as mentioned in not required to be given item 1, and also a conditionally exempt document under Division 3 4 access to a document is (a) an edited copy deleting refused because it contains the exempt matter must exempt matter, and the be prepared (if exempt matter can be practicable); and deleted (b) access to the edited copy must be given; 5 a document is an exempt access to the document may document because of any be given apart from under provision of this Act this Act

31B

because of … subsection 11A(4).

subsection 11A(5) (see also section 11B (public interest factors)).

subsections 11A(4) and (6), and section 32 (interpretation).

section 22.

section 3A (objects– information or documents otherwise accessible).

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

(a) it is an exempt document under Division 2; or (b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). [page 187] Note 1:

Note 2:

32

A document is an exempt document for the purposes of this Act (see subsection 4(1)) if: (a) it is exempt under this section; or (b) it is exempt because of section 7 (exemption of certain persons and bodies); or (c) it is an official document of a Minister that contains matters not relating to the affairs of an agency or a Department of State. Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Interpretation A provision of this Part by virtue of which documents referred to in the provision are exempt documents, or are conditionally exempt: (a) shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; and (b) shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.

Division 2—Exemptions 33

Documents affecting national security, defence or international relations A document is an exempt document if disclosure of the document under

this Act: (a) would, or could reasonably be expected to, cause damage to: (i)

the security of the Commonwealth;

(ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; or (b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. Note:

34

See also subsection 4(10).

Cabinet documents

General rules (1) A document is an exempt document if: [page 188] (a) both of the following are satisfied: (i)

it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;

(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or (b) it is an official record of the Cabinet; or (c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or (d) it is a draft of a document to which paragraph (a), (b) or (c) applies.

(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies. (3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed. Exceptions (4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies. Note:

However, the attachment itself may be an exempt document.

(5) A document by which a decision of the Cabinet is officially published is not an exempt document. (6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless: (a) the disclosure of the information would reveal a Cabinet deliberation or decision; and (b) the existence of the deliberation or decision has not been officially disclosed.

37

Documents affecting enforcement of law and protection of public safety

(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; (b) disclose, or enable a person to ascertain, the existence or identity of

a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or (c) endanger the life or physical safety of any person. [page 189] (2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: (a) prejudice the fair trial of a person or the impartial adjudication of a particular case; (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or (c) prejudice the maintenance or enforcement of lawful methods for the protection of public safety. (2A) For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of: (a) witnesses; or (b) people who, because of their relationship to, or association with, a witness need, or may need, such protection; or (c) any other people who, for any other reason, need or may need, such protection.

(3) In this section, law means law of the Commonwealth or of a State or Territory.

38

Documents to which secrecy provisions of enactments apply

(1) Subject to subsection (1A), a document is an exempt document if: (a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and (b) either: (i)

that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment. (1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment. (2) Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person. (3) This section applies in relation to a document so far as it contains personal information about a person if: (a) the person requests access to the document; and [page 190] (b) disclosure of the document, or information contained in the document, is prohibited under section 503A of the Migration Act 1958 as affected by section 503D of that Act.

(4) In this section: enactment includes a Norfolk Island enactment.

42

Documents subject to legal professional privilege

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim. (3) A document is not an exempt document under subsection (1) by reason only that: (a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and (b) the information is operational information of an agency. Note:

45

For operational information, see section 8A.

Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence. (2) Subsection (1) does not apply to a document to which subsection 47C(1) (deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)), that is prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his or her duties, or by a prescribed authority or Norfolk Island authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State unless the disclosure of the document would constitute a breach of confidence owed to a person or body other than:

(a)

a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or

(b) an agency, the Commonwealth or Norfolk Island.

45A

Parliamentary Budget Office documents

General rules (1) A document is an exempt document if: (a) both of the following are satisfied: [page 191] (i)

the document originated from the Parliamentary Budget Officer or the Parliamentary Budget Office;

(ii) the document was prepared in response to, or otherwise relates to, a confidential request; or (b) the document was brought into existence for the dominant purpose of providing information to the Parliamentary Budget Officer or the Parliamentary Budget Office relating to a confidential request; or (c) the document was provided to the Parliamentary Budget Officer or the Parliamentary Budget Office in response to a request by the Parliamentary Budget Officer for more information in relation to a confidential request; or (d) the document is a draft of a document to which paragraph (a), (b) or (c) applies. (2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies. (3) A document is an exempt document to the extent that it contains

information the disclosure of which would reveal that a confidential request has been made to the Parliamentary Budget Officer or the Parliamentary Budget Office, unless the existence of the request has been disclosed by the Senator or Member of the House of Representatives who made the request. Exceptions (4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies. Note:

However, the attachment itself may be an exempt document.

(5) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information has been made publicly available by the Parliamentary Budget Officer: (a) under section 64U of the Parliamentary Service Act 1999; or (b) in a statement made under subsection 64V(4) of that Act. (6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information has been made publicly available by the Senator or Member of the House of Representatives who made the confidential request to which the document relates. (7) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless: (a) the disclosure of the information would reveal the existence of a confidential request; and (b) the existence of the confidential request has not been disclosed by the Senator or Member of the House of Representatives who made the request. [page 192]

Definition (8) In this section: confidential request means a request referred to in paragraph 64E(1)(a) or (c) of the Parliamentary Service Act 1999 that includes a direction under paragraph 64H(3)(d) or section 64M (as the case may be) of that Act to treat the request or any other information relating to the request as confidential.

46

Documents disclosure of which would be contempt of Parliament or contempt of court A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown: (a) be in contempt of court; (b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or (c) infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory or of Norfolk Island.

47

Documents disclosing trade secrets or commercially valuable information

(1) A document is an exempt document if its disclosure under this Act would disclose: (a) trade secrets; or (b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed. (2) Subsection (1) does not have effect in relation to a request by a person for access to a document: (a) by reason only of the inclusion in the document of information

concerning that person in respect of his or her business or professional affairs; or (b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or (c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation. [page 193] (3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a local government authority.

47A

Electoral rolls and related documents

(1) In this section: Electoral Act means the Commonwealth Electoral Act 1918. electoral roll means: (a) a Roll of the electors of: (i)

a State or Territory; or

(ii) a Division (within the meaning of the Electoral Act); or (iii) a Subdivision (within the meaning of the Electoral Act); prepared under the Electoral Act; or (b) any part of a Roll referred to in paragraph (a); or (c) an electoral roll prepared under the Legislative Assembly Act 1979 of

Norfolk Island; or (d) any part of an electoral roll referred to in paragraph (c). (2) Subject to this section, a document is an exempt document if it is: (a) an electoral roll; or (b) a print, or a copy of a print, of an electoral roll; or (c) a microfiche of an electoral roll; or (d) a copy on tape or disk of an electoral roll; or (e) a document that: (i)

sets out particulars of only one elector; and

(ii) was used to prepare an electoral roll; or (f)

a document that: (i)

is a copy of a document referred to in paragraph (e); or

(ii) contains only copies of documents referred to in paragraph (e); or (g) a document (including a habitation index within the meaning of the Electoral Act) that: (i)

sets out particulars of electors; and

(ii) was derived from an electoral roll. (3) The part of an electoral roll that sets out the particulars of an elector is not an exempt document in relation to the elector. (4) Any print, copy of a print, microfiche, tape or disk that sets out or reproduces only the particulars entered on an electoral roll in respect of an elector is not an exempt document in relation to the elector. (5) A document that sets out only the particulars of one elector and: (a) is a copy of a document referred to in paragraph (2)(e); or (b) is a copy, with deletions, of a document referred to in paragraph (2) (e), (f) or (g); is not an exempt document in relation to the elector.

[page 194]

Division 3—Public interest conditional exemptions 47B

Public interest conditional exemptions— Commonwealth-State relations etc. A document is conditionally exempt if disclosure of the document under this Act: (a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or (c) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and Norfolk Island; or (d) would divulge information or matter communicated in confidence by or on behalf of the Government of Norfolk Island or an authority of Norfolk Island, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or (e) would, or could reasonably be expected to, cause damage to relations between Norfolk Island and a State; or (f)

would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of Norfolk Island, to an authority of

Norfolk Island or to a person receiving the communication on behalf of Norfolk Island or of an authority of Norfolk Island. Note:

47C

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—deliberative processes

General rule (1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of: (a) an agency; or (b) a Minister; or (c) the Government of the Commonwealth; or (d) the Government of Norfolk Island. [page 195] Exceptions (2) Deliberative matter does not include either of the following: (a) operational information (see section 8A); (b) purely factual material. Note:

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

(3) This section does not apply to any of the following: (a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within

an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; (b) reports of a body or organisation, prescribed by the regulations, that is established within an agency; (c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function. Note:

47D

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—financial or property interests of the Commonwealth or Norfolk Island

A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth, of Norfolk Island or of an agency. Note:

47E

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—certain operations of agencies A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following: (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; (b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency; (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

[page 196]

47F

Public interest conditional exemptions—personal privacy

General rule (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; (c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. (3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person. Access given to qualified person instead (4) Subsection (5) applies if: (a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was

provided by a qualified person acting in his or her capacity as a qualified person; and (b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well-being. (5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who: (a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the firstmentioned qualified person; and (b) is to be nominated by the applicant. (6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23. (7) In this section: qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental [page 197] health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following: (a) a medical practitioner; (b) a psychiatrist;

(c) a psychologist; (d) a counsellor; (e) a social worker. Note:

47G

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—business

(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information: (a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or (b) could reasonably be expected to prejudice the future supply of information to the Commonwealth, Norfolk Island or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency. (2) Subsection (1) does not apply to trade secrets or other information to which section 47 applies. (3) Subsection (1) does not have effect in relation to a request by a person for access to a document: (a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or (b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor

of the undertaking or a person acting on behalf of the proprietor; or (c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation. (4) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a local government authority. [page 198] (5) For the purposes of subsection (1), information is not taken to concern a person in respect of the person’s professional affairs merely because it is information concerning the person’s status as a member of a profession. Note:

47H

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—research

A document is conditionally exempt if: (a) it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4; and (b) disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage. Note:

47J

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Public interest conditional exemptions—the economy

(1) A document is conditionally exempt if its disclosure under this Act would, or could be reasonably expected to, have a substantial adverse

effect on Australia’s economy by: (a) influencing a decision or action of a person or entity; or (b) giving a person (or class of persons) an undue benefit or detriment, in relation to business carried on by the person (or class), by providing premature knowledge of proposed or possible action or inaction of a person or entity. Note:

A person includes a body corporate and a body politic (see subsection 2C(1) of the Acts Interpretation Act 1901). Examples of a body politic include the government of the Commonwealth, a State, a Territory or a foreign country.

(2) For the purposes of subsection (1), a substantial adverse effect on Australia’s economy includes a substantial adverse effect on: (a) a particular sector of the economy; or (b) the economy of a particular region of Australia. (2A) For the purposes of paragraph (2)(b), Norfolk Island is taken to be a region of Australia. (3) The documents to which subsection (1) applies include, but are not limited to, documents containing matter relating to any of the following: (a) currency or exchange rates; (b) interest rates; (c) taxes, including duties of customs or of excise; (d) the regulation or supervision of banking, insurance and other financial institutions; [page 199] (e) proposals for expenditure; (f)

foreign investment in Australia;

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

Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

[page 200]

Part V—Amendment and annotation of personal records 48

Application for amendment or annotation of personal records Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person: (a) that is incomplete, incorrect, out of date or misleading; and (b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the person may apply to the agency or Minister for: (c) an amendment; or (d) an annotation; of the record of that information kept by the agency or Minister.

49

Requirements of an application for amendment An application for amendment must: (a) be in writing; and (b) as far as practicable, specify: (i)

the document or official document containing the record of personal information that is claimed to require amendment; and

(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and (iii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(iv) the applicant’s reasons for so claiming; and (v) the amendment requested by the applicant; and (c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and (d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

50

Amendment of records

(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that: (a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and [page 201] (b) the information is incomplete, incorrect, out of date or misleading; and (c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the agency or Minister may amend the record of information. (2) The agency or Minister may make the amendment: (a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or (b) by adding to that document or official document a note: (i)

specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of

date or misleading; and (ii) in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date. (3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.

51

Annotations of records etc. following unsuccessful applications for amendments of records

(1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must: (a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and (b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided. (2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous. (3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.

51A

Requirements of an application for annotation

An application for annotation must: (a) be in writing; and (b) as far as practicable, specify the document or official document containing the record of personal information that is claimed to require annotation; and

(c) be accompanied by a statement by the applicant that specifies: (i)

the information that is claimed to be incomplete, incorrect, out of date or misleading; and [page 202]

(ii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and (iii) the applicant’s reasons for so claiming; and (iv) such other information as would make the information complete, correct, up to date or not misleading; and (d) specify an address in Australia to which a notice under this Part may be sent to the applicant; and (e) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

51B

Annotation of records

(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c). (2) Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

51C

Transfer of requests

(1) Where an application is made under section 48 to an agency or a

Minister and: (a) the document containing the record of personal information to which the request relates is not in the possession of that agency or Minister, but is, to the knowledge of the agency or Minister, in the possession of another agency or Minister; or (b) the subject matter of that document is more closely connected with the functions of another agency or Minister than with those of the agency or Minister to whom the application is made; the agency or Minister to whom the application is made may, with the agreement of the other agency or Minister, transfer the application to the other agency or Minister. (2) Where an application is made under section 48 to an agency or Minister and the document containing the record of personal information to which the application relates: (a) originated with, or has been received from, a body or person specified in Part I of Schedule 2; and (b) is more closely connected with the functions of that body or person than with those of the agency or Minister to whom the application is made; [page 203] the agency or Minister to whom the application is made must transfer the application: (c) to the Department corresponding to the Department of State administered by the Minister who administers the enactment by or under which the body or person is established, continued in existence or appointed; or (d) if the application relates to a document that originated with, or has

been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2—to that Department. (3) Where an application is made under section 48 to an agency or a Minister and the document containing the record of personal information to which the application relates: (a) originated in, or has been received from, another agency, being an agency specified in Part II of Schedule 2 or an agency that is a body corporate established by or under an Act specified in Part III of Schedule 2; and (b) is more closely connected with the functions of the other agency in relation to documents in respect of which the other agency is exempt from the operation of this Act than with the functions of the agency or Minister to whom the application is made; the agency or Minister to whom the application is made must transfer the application to the other agency. (4) Where: (a) an application made under section 48 to an agency or a Minister concerns records of personal information contained in more than one document; and (b) one or more of those documents is a document to which subsection (1), (2) or (3) applies; this section applies to each of those documents as if separate applications had been made to the agency or Minister in respect of records of personal information contained in each of those documents. (5) Where an application is transferred to an agency or Minister under this section, the agency or Minister making the transfer must: (a) inform the person making the application of the transfer; and (b) if it is necessary to do so in order to enable the other agency or Minister to deal with the application, send the document concerned to the other agency or Minister.

(6) Where an application is transferred to an agency or a Minister under this section, the application is to be taken to be an application: (a) made to that agency or Minister under section 48; and (b) received by the agency or Minister at the time at which it was first received by an agency or Minister. (7) Where: (a) an application has been transferred to an agency or Minister in accordance with this section; and [page 204] (b) the agency or Minister to whom the application has been transferred decides to amend or annotate, under this Part, a record of personal information to which the application relates; the agency or Minister must, by written notice, notify the agency or Minister who made the transfer: (c) of that decision; and (d) of any amendment or annotation made by the first-mentioned agency or Minister in relation to that record. (8) Where the agency or Minister receiving a notice under subsection (7) is in possession of a document containing the record of personal information to which the application relates, the agency or Minister must, upon receiving the notice, amend or annotate the record in the same manner as the record was amended or annotated by the agency or Minister to whom the application was transferred.

51D

Notification etc. of a decision under this Part

(1) Where an application is made to an agency or Minister under this Part, the agency or Minister must take all reasonable steps to enable the applicant to be notified of a decision on the application as soon as

practicable but in any case not later than 30 days after the day on which the request is received by or on behalf of the agency or Minister. (2) Section 23 applies in relation to a decision on an application made under section 48. (3) Section 26 applies in relation to a decision made under this Part refusing to amend or annotate a record as if that decision were a decision made under Part III refusing to grant access to a document in accordance with a request made under subsection 15(1).

51DA Decision not made on request for amendment or annotation within time—deemed refusal (1) This section applies if: (a) an application has been made to an agency or Minister under section 48; and (b) the period of 30 days mentioned in section 51D (the initial decision period) has ended since the day the application was received by, or on behalf of, the agency or Minister; and (c) notice of a decision on the application has not been received by the applicant. [page 205] Deemed refusal (2) Subject to this section: (a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to amend or annotate the record of personal information to which the application relates on the last day of the initial decision period; and (b) notice of the decision is taken to have been given under section 26 to the applicant on the same day.

Agency or Minister may apply for further time (3) However, the agency or Minister concerned may apply, in writing, to the Information Commissioner for further time to deal with the application. (4) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency or Minister to deal with the application. (5) If the Information Commissioner allows further time, the Information Commissioner may impose any condition that he or she considers appropriate. (6) Subsection (2) (deemed refusal) does not apply, and is taken never to have applied, if the agency or Minister: (a) makes a decision on the application within the further time allowed; and (b) complies with any condition imposed under subsection (5). (7) However, subsection (2) (deemed refusal) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (4) if the agency or Minister: (a) does not make a decision on the request within the further time allowed; or (b) does not comply with any condition imposed under subsection (5). No further time allowed (8) If subsection (7) (deemed refusal after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (2) in its operation as affected by subsection (7).

51E

Comments on annotations Nothing in this Part prevents an agency or Minister adding the agency’s or Minister’s comments to an annotation made to a record of information under section 51 or 51B.

[page 206]

Part VI—Internal review of decisions 52

Internal review of decisions—guide

This Part provides for internal review of decisions by agencies, other than decisions made personally by the principal officer of an agency or the responsible Minister. Agencies are required to complete internal reviews within 30 days. However, this period may be extended. Sections 53A, 53B and 53C define the terms access refusal decision, access grant decision and affected third party. These terms are used in this Part and in Parts VII and VIIA.

53

Interpretation For the purposes of this Act, unless the contrary intention appears, a claim that a document would, if it exists, be an exempt document under section 33 or 34 is to be deemed to be a claim that the document is an exempt document under that section despite the fact that the existence or non-existence of the document is not acknowledged.

53A

What is an access refusal decision?

An access refusal decision is any of the following decisions: (a) a decision refusing to give access to a document in accordance with a request; (b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates; (c) a decision purporting to give, in accordance with a request, access

to all documents to which the request relates, but not actually giving that access; (d) a decision to defer the provision of access to a document (other than a document covered by paragraph 21(1)(d) (Parliament should be informed of contents)); (e) a decision under section 29 relating to imposition of a charge or the amount of a charge; (f)

a decision to give access to a document to a qualified person under subsection 47F(5);

(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; (h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48. [page 207] Note:

53B

If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC).

What is an access grant decision?

(1) An access grant decision is a decision covered by the following table: Note:

The table covers documents that may be conditionally exempt under section 47B (items 1 and 1A), 47G (item 2) or 47F (items 3 and 4), or exempt under section 47 (item 2). Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Access grant decisions Item If, in relation to a request for access to a document … 1 consultation with a State under section 26A (documents affecting Commonwealth-State relations etc.) is required

the access grant decision is … a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally

1A

2

exempt under section 47B (Commonwealth-State relations etc.); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5). consultation with the Commonwealth a decision of an agency or Minister to give or a State under section 26AA the applicant access to the document (or an (documents affecting Norfolk Island edited copy of the document) because: intergovernmental relations) is (a) the document is not conditionally required exempt under section 47B (Commonwealth-State relations etc.); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5). section 27 (business documents) a decision of an agency or Minister to give applies in relation to business access to the document (or an edited copy information in the document of the document) because: (a) the document is neither exempt under section 47, nor conditionally exempt under section 47G; or (b) if the document is conditionally exempt under section 47G—access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note: Section 47 deals with documents disclosing trade secrets or commercially valuable information. Section 47G deals with other business documents.

[page 208] 3

section 27A (documents

a decision of an agency or Minister to give the applicant access to the document (or an

affecting personal privacy) edited copy of the document) applies in relation to personal because: information in the document (a) the document is not conditionally exempt under about a living person section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

4

section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person

a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

(2) For the purposes of table item 1, State has the same meaning as in section 26A.

53C

Internal review—who is an affected third party?

(1) The following table has effect: Who is an affected third party? Item If, in relation to a request for access to a document … 1 consultation with a State under section 26A (documents affecting Commonwealth-State relations etc.) is required 1A consultation with the Commonwealth or a State under section 26AA (documents affecting Norfolk Island intergovernmental relations) is required 2 section 27 (business documents) applies in relation to business information in the document 3 section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person 4 section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person

the affected third party for the document is … the State.

the Commonwealth or the State, as the case may be.

the person or organisation concerned (within the meaning of section 27). the person.

the legal personal representative of the deceased person.

[page 209] (2) For the purposes of table item 1, State has the same meaning as in section 26A.

54

Internal review—access refusal decision

(1) This section applies if an access refusal decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister. (2) The applicant in relation to the request may apply under this Part for the review (the internal review) of the access refusal decision.

54A

Internal review—access grant decision

(1) This section applies if an access grant decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister. (2) The affected third party for the document may apply under this Part for the review (the internal review) of the access grant decision. Note:

54B

For affected third party, see section 53C.

Internal review—application for review

(1) An application for internal review must be in writing and must be made: (a) within 30 days, or such further period as the agency allows, after the day the decision is notified to the applicant for internal review (the internal review applicant); or (b) in the case of an access refusal decision of a kind mentioned in paragraph 53A(b), (c) or (f), within whichever of the following is the longer period: (i)

30 days, or such further period as the agency allows, after the day the decision is notified to the internal review applicant;

(ii) 15 days after the day the access referred to in that paragraph was given (or purported to be given). (2) A decision by an agency to allow a further period for making an application may be made whether or not the time for making such an application has already expired. (3) The agency’s power to allow a further period for making an application may be exercised by an officer of the agency who is: (a) acting within the scope of authority exercisable by him or her; and (b) acting in accordance with arrangements approved by the responsible Minister or principal officer of the agency. [page 210]

54C

Internal review—decision on internal review

Scope (1) This section applies if an application for internal review of an access refusal decision or an access grant decision (the original decision) is made in accordance with this Part. Decision (2) The agency must, as soon as practicable, arrange for a person (other than the person who made the original decision) to review the decision. (3) The person must make a fresh decision on behalf of the agency within 30 days after the day on which the application was received by, or on behalf of, the agency. Notice of decision (4) Section 26 extends to a decision made under this section.

54D

Internal review—deemed affirmation of original decision

(1) This section applies if: (a) an application for internal review has been made to an agency; and (b) the period (the initial decision period) of 30 days (as mentioned in subsection 54C(3)) has ended since the day the application for internal review was received by the agency; and (c) notice of a decision on the application has not been received by the internal review applicant. (2) Subject to this section: (a) the principal officer of the agency is taken to have made a decision personally affirming the original decision on the last day of the initial decision period; and (b) notice of the decision is taken to have been given under section 26

to the internal review applicant on the same day. Agency may apply for further time (3) However, the agency may apply, in writing, to the Information Commissioner for further time to deal with the application. (4) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency to deal with the application. (5) If the Information Commissioner allows further time the Information Commissioner may impose any condition that he or she considers appropriate. (6) Subsection (2) (deemed affirmation) does not apply, and is taken never to have applied, if the agency: [page 211] (a) makes a decision on the application within the further time allowed; and (b) complies with any condition imposed under subsection (5). (7) However, subsection (2) (deemed affirmation) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (4) if the agency: (a) does not make a decision on the request within the further time allowed; or (b) does not comply with any condition imposed under subsection (5). No further time allowed (8) If subsection (7) (deemed affirmation after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to

be made under subsection (2) in its operation as affected by subsection (7).

54E

Internal review—decisions to which this Part does not apply This Part does not apply in relation to: (a) a decision on internal review; or (b) a decision in relation to the provision of access to a document upon a request that is taken to have been made under section 15AC or 51DA.

[page 212]

Part VII—Review by Information Commissioner Division 1—Guide to this Part 54F

Review by the Information Commissioner—guide

This Part sets up a system for review of decisions by the Information Commissioner. Division 2 sets out the key concepts for the Part. Division 3 sets out the types of decisions that are reviewable. Division 4 provides for the making of applications for review by the Information Commissioner, including the time limits within which applications must be made. The Information Commissioner may make preliminary inquiries before deciding whether or not to conduct a review. In certain circumstances, the Information Commissioner may decide not to review a decision (or a part of a decision) (see Division 5). Division 6 provides for the procedure in an IC review, including the parties to the proceeding, circumstances in which a hearing may be held and who bears the onus of proof. The Information Commissioner may refer questions of law to the Federal Court of Australia at any time during the review. The Information Commissioner must make a decision on the review in

accordance with Division 7. The Information Commissioner has powers to gather information for the purposes of an IC review (see Division 8). In certain circumstances, the Inspector-General of Intelligence and Security must be called to give evidence (see Division 9). An application for review of a decision of the Information Commissioner may be made to the Administrative Appeals Tribunal. A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner (see Division 10).

[page 213]

Division 2—Key concepts 54G

Key concepts—what is an IC review?

An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under this Part. Note:

54H

IC review is short for Information Commissioner review.

Key concepts—what is an IC review application?

An IC review application is an application made under Division 4 for the review of an IC reviewable decision. Note:

54J

IC review application is short for Information Commissioner review application.

Key concepts—who is an IC review applicant? An IC review applicant is a person who applies for an IC review under

section 54L or 54M. Note:

54K

IC review applicant is short for Information Commissioner review applicant.

Key concepts—what is an IC reviewable decision? An IC reviewable decision is: (a) a decision covered by subsection 54L(2) (access refusal decisions); or (b) a decision covered by subsection 54M(2) (access grant decisions). Note:

IC reviewable decision is short for Information Commissioner reviewable decision.

Division 3—IC reviewable decisions 54L

IC reviewable decisions—access refusal decisions

(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2). (2) This subsection covers the following decisions: (a) an access refusal decision; (b) a decision made by an agency on internal review of an access refusal decision (see section 54C); (c) a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B). Note 1:

Note 2:

An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review. If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).

[page 214]

(3) The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.

54M

IC reviewable decisions—access grant decisions

(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2). (2) This subsection covers the following decisions: (a) an access grant decision; (b) a decision made by an agency on internal review of an access grant decision (see section 54C). Note:

If no decision is made on internal review within 30 days, a decision to affirm the original access grant decision is taken to have been made (see section 54D).

(3) The IC review application may be made by, or on behalf of, the following: (a) in any case—an affected third party for the document in relation to which the decision covered by subsection (2) was made; (b) in a case covered by paragraph (2)(b)—the person who made the request to which the decision relates. Note:

For affected third party, see section 53C.

Division 4—IC review applications Subdivision A—Making an application 54N

IC review applications—application

Content of application (1) An IC review application must be in writing, and must: (a) give details of how notices under this Part may be sent to the IC review applicant (for example, by providing an electronic address to which notices may be sent by electronic communication); and

include a copy of the notice given under section 26 of the IC reviewable decision for which an IC review is sought.

(b) Note:

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

(2) The IC review application may contain particulars of the basis on which the IC review applicant disputes the IC reviewable decision. (3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who: (a) wishes to make an IC review application; and (b) requires assistance to prepare the IC review application. Delivery of application (4) The IC review application must be sent to the Information Commissioner. The IC review application may be sent in any of the following ways: [page 215] (a) delivery to the Information Commissioner at the address of the Information Commissioner specified in a current telephone directory; (b) postage by pre-paid post to an address mentioned in paragraph (a); (c) sending by electronic communication to an electronic address specified by the Information Commissioner.

54P

IC review applications—requirement to notify affected third parties

Scope (1) This section applies if: (a) an agency or Minister decides not to give access to a document to

which a consultation requirement applies under section 26A, 26AA, 27 or 27A; and (b) an IC review application is made for an IC review of that decision. Requirement to notify (2) The agency or Minister must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application. Note 1: Note 2:

For affected third party, see section 53C. The agency or Minister is not required to give notice if the Information Commissioner orders that it is not appropriate to do so in the circumstances (see section 54Q).

(3) The agency or Minister must, as soon as practicable, give a copy of the notice to the Information Commissioner.

54Q

IC review applications—circumstances in which not giving notice is appropriate

(1) This section applies in relation to a document to which a consultation requirement applies under section 27 or 27A. (2) An agency or Minister is not required to notify an affected third party for the document under subsection 54P(2) if: (a) the agency or the Minister applies to the Information Commissioner for an order that it would not be appropriate to notify the affected third party in the circumstances covered by subsection (3); and (b) the Information Commissioner makes the order. Note:

For affected third party, see section 53C.

(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following: (a) prejudice the conduct of an investigation of a breach, or possible

breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation; [page 216] (b) prejudice the enforcement or proper administration of the law in a particular instance; (c) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; (d) endanger the life or physical safety of any person; (e) cause damage to the security, defence or international relations of the Commonwealth.

54R

IC review applications—withdrawal

(1) An IC review applicant may, in writing, withdraw the IC review application at any time before the Information Commissioner makes a decision under section 55K. (2) If the IC review application is withdrawn, it is taken never to have been made.

Subdivision B—Time limits 54S

IC review applications—time limits

Access refusal decisions (1) An IC review application in relation to a decision covered by subsection 54L(2) (access refusal decisions) must be made within 60 days after the day notice of the IC reviewable decision was given under section 26. Access grant decisions

(2) An IC review application in relation to a decision covered by subsection 54M(2) (access grant decisions) must be made within 30 days after: (a) if a decision is made on internal review of the decision—the day notice of the decision under section 54C was given to the affected third party for the document in relation to which the decision is made; or (b) otherwise—the day notice under section 26A, 26AA, 27 or 27A was given to the affected third party for the document in relation to which the decision was made. Note:

For affected third party, see section 53C.

[page 217]

54T

IC review applications—extension of time

Application for extension of time (1) A person may apply to the Information Commissioner for an extension of time for making an IC review application. (2) The Information Commissioner may extend the time if the Information Commissioner is satisfied that it is reasonable in all the circumstances to do so. (3) The time for making an IC review application may be extended under this section although the period mentioned in section 54S has ended. Requirement to notify (4) Before determining an application under subsection (1), the Information Commissioner may require the IC review applicant to give notice of the application to a specified person or persons that the Information Commissioner considers is affected by the application. Person may oppose application

(5) A person to whom notice is given under subsection (4) may notify the Information Commissioner in writing that he or she opposes the application under subsection (1). The person must do so within the time required by the Information Commissioner. Reasonable opportunity to be heard (6) If notice is given under subsection (5), the Information Commissioner must give the IC review applicant and the person to whom notice has been given under subsection (4) a reasonable opportunity to present their cases before determining the application under subsection (1).

Division 5—Decision to review 54U

Decision to review—interpretation

This Division applies to a part of an IC review application as if a reference to an IC review application were a reference to the part of the IC review application.

54V

Decision to review—preliminary inquiries The Information Commissioner may make inquiries of the review parties for the purpose of determining whether or not to undertake an IC review.

54W Decision to review—discretion not to review The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if: [page 218] (a) the Information Commissioner is satisfied of any of the following: (i)

the IC review application is frivolous, vexatious, misconceived,

lacking in substance or not made in good faith; (ii) the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse; (iii) the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or (b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or (c) the IC review applicant fails to comply with a direction of the Information Commissioner. Note 1: Note 2:

Note 3:

54X

The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U). If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A). Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner.

Decision to review—notice requirement if discretion not to review exercised

(1) This section applies if the Information Commissioner decides not to undertake an IC review, or not to continue to undertake an IC review. (2) The Information Commissioner must, as soon as practicable, notify the review parties of the decision in writing. (3) The notice must: (a) state the reasons for the Information Commissioner’s decision; and (b) if the Information Commissioner makes a decision under paragraph 54W(b)—state that an application for review of the relevant IC reviewable decision may be made to the Tribunal under

section 57A. Note:

See section 57A for the time within which the application for review must be made to the Tribunal.

(4) However, the notice must not include: (a) exempt matter; or (b) information of the kind referred to in subsection 25(1). Note:

Subsection 25(1) deals with information about the existence or otherwise of certain documents.

[page 219]

54Y

Decision to review—actual decisions made after IC review has commenced

(1) This section applies if: (a) an agency or Minister has been taken to have made a decision (the deemed decision) under subsection 15AC(3), 51DA(2) or 54D(2); and (b) a person makes an IC review application for review of the deemed decision; and (c) the Information Commissioner has not made a decision under section 54W (decision not to review) or 55K (decision on review) in relation to the deemed decision; and (d) subsection 15AC(7), 51DA(6) or 54D(6) applies in relation to a decision (the actual decision) made by the agency or Minister. (2) The Information Commissioner must deal with the IC review application for review of the deemed decision as if it were an IC review application for the review of the actual decision, subject otherwise to this Part. Note:

When making the actual decision, a consultation requirement under section 26A (documents affecting Commonwealth-State relations etc.), 26AA

(documents affecting Norfolk Island intergovernmental relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.

Division 6—Procedure in IC review 54Z

Procedure in IC review—general notice requirement Before undertaking an IC review, the Information Commissioner must inform: (a) the person, agency or Minister who made the decision; or (b) if the IC review application is made under section 54M (access grant decisions)—the person who made the request.

55

Procedure in IC review—general

(1) The Information Commissioner may, for the purposes of an IC review, review an IC reviewable decision by considering the documents or other material lodged with or provided to the Information Commissioner, and without holding a hearing, if: (a) it appears to the Information Commissioner that the issues for determination on the IC review can be adequately determined in the absence of the review parties; and (b) the Information Commissioner is satisfied that there are no unusual circumstances that would warrant the Information Commissioner holding a hearing; and (c) none of the review parties have applied for a hearing under section 55B. [page 220] (2) The Information Commissioner may otherwise: (a) conduct an IC review in whatever way he or she considers

appropriate; and (b) use any technique that the Information Commissioner considers appropriate to facilitate an agreed resolution of matters at issue in the IC review (for example by using techniques that are used in alternative dispute resolution processes); and (c) allow a person to participate in an IC review by any means of communication; and (d) obtain any information from any person, and make any inquiries, that he or she considers appropriate; and (e) give written directions as to the procedure to be followed in relation to: (i)

IC reviews generally; or

(ii) a particular IC review. Example 1: Example 2:

The Information Commissioner may allow a person under paragraph (2)(c) to participate in a hearing by telephone. The Information Commissioner may give written directions under subparagraph (2)(e)(ii) as to the procedure to be followed when dealing with confidential documents in a particular IC review.

(3) A direction given under paragraph (2)(e) is not a legislative instrument. (4) Without limiting subsection (2), the Information Commissioner must, in relation to an IC review: (a) conduct the IC review with as little formality and as little technicality as is possible given: (i)

the requirements of this Act; and

(ii) the requirements of any other law; and (iii) a proper consideration of the matters before the Information Commissioner; and (b) ensure that each review party is given a reasonable opportunity to present his or her case; and (c) conduct the IC review in as timely a manner as is possible given the

matters mentioned in subparagraphs (a)(i) to (iii). (5) If the Information Commissioner holds a hearing, the Information Commissioner: (a) must hold the hearing in public, unless the Information Commissioner is satisfied that it is not desirable to do so: (i)

because of the confidential nature of any evidence or matter relating to the proceeding; or

(ii) for any other reason; and (b) is not bound by the rules of evidence; and (c) may hold a part of the hearing in the absence of a review party (or a review party’s representative) if it is necessary to do so to prevent disclosure to the review party (or the review party’s representative) of any evidence or matter relating to the proceeding that is of a confidential nature. [page 221]

55A

Procedure in IC review—parties to proceeding

Who are the review parties? (1) The parties to an IC review (the review parties) are as follows: (a) the IC review applicant; (b) the principal officer of the agency, or the Minister, to whom the request was made; (c) an affected third party (if any) required to be notified of the IC review application under section 54P (requirement to notify affected third parties); (d) a party to the proceeding under subsection (3). Note:

For affected third party, see section 53C.

Application to become a review party (2) If an IC review application is made in relation to an IC reviewable decision, a person whose interests are affected by the IC reviewable decision may apply, in writing, to the Information Commissioner to be a review party. (3) The Information Commissioner may, by notice in writing, make a person who applies under subsection (2) an IC review party.

55B

Procedure in IC review—application for hearing

(1) At any time during an IC review, a review party may apply to the Information Commissioner requesting that the Information Commissioner hold a hearing for the purposes of the IC review. (2) The Information Commissioner must notify the other review parties of the application. (3) The Information Commissioner must: (a) give all review parties a reasonable opportunity to make submissions on the application; and (b) decide whether or not to hold a hearing.

55C

Procedure in IC review—representation At the hearing of a proceeding before the Information Commissioner, a review party may: (a) appear in person; or (b) be represented by another person.

55D

Procedure in IC review—onus

(1) Subject to subsection (2), in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that: (a) a decision given in respect of the request or application is justified; or

[page 222] (b) the Information Commissioner should give a decision adverse to the IC review applicant. (2) In an IC review of a decision for which an IC review application is made under section 54M (access grant decisions), the affected third party for the document in relation to which the decision was made has the onus of establishing that: (a) a decision refusing the request is justified; or (b) the Information Commissioner should give a decision adverse to the person who made the request. Note:

For affected third party, see section 53C.

55DA Decision-maker must assist Information Commissioner In an IC review, the agency or Minister who made the IC reviewable decision must use the agency’s or the Minister’s best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.

55E

Procedure in IC review—inadequate reasons from decision maker

(1) This section applies if: (a) an IC review application is made in relation to an IC reviewable decision made by an agency or a Minister; and (b) the agency or Minister was required to provide a statement of reasons under section 26 for the decision to the person who made the request; and (c) the Information Commissioner believes that: (i)

no statement has been provided; or

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

The Information Commissioner may, by notice in writing, require the (2) agency or Minister to provide an adequate statement of reasons as mentioned in subsection 26(1). (3) If the Information Commissioner gives notice under subsection (2), the agency or Minister must provide the adequate statement of reasons to the IC review applicant and the Information Commissioner within: (a) the period specified in the notice; or (b) if no period is specified in the notice—28 days after the day the notice was given to the agency or Minister.

55F

Procedure in IC review—review parties reach agreement

(1) This section applies if, at any stage of an IC review: (a) the review parties reach agreement as to the terms of a decision on an IC review: (i)

on the IC review application; or [page 223]

(ii) in relation to a part of the IC review application; or (iii) in relation to a matter arising out of the IC review application; and (b) the agreement is acceptable to all of the review parties; and (c) the terms of the agreement are reduced to writing, signed by, or on behalf of, the review parties and given to the Information Commissioner; and (d) the Information Commissioner is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Information Commissioner.

(2) The Information Commissioner may, if satisfied that it is appropriate: (a) in the case of an agreement as to the terms of a decision of the Information Commissioner on the IC review—make a decision in accordance with those terms without completing the IC review; or (b) in the case of an agreement that relates to a part of the proceeding or a matter arising out of the proceeding—in the Information Commissioner’s decision on the IC review, give effect to the terms of the agreement without completing the IC review with respect to the part.

55G

Procedure in IC review—revocation or variation of access refusal decision

(1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request or an application under section 48 at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision) would have an effect of: (a) giving access to a document in accordance with the request; or (b) relieving the IC review applicant from liability to pay a charge; or (c) requiring a record of personal information to be amended or annotated in accordance with the application. Note:

When making the revised decision, a consultation requirement under section 26A (documents affecting Commonwealth-State relations etc.), 26AA (documents affecting Norfolk Island intergovernmental relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.

(2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1): (a) the agency or Minister must, in writing, notify the Information Commissioner as soon as practicable after the agency or Minister makes the variation or substitution; and

the Information Commissioner must deal with the IC review (b) application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part. [page 224]

55H

Procedure in IC review—reference of questions of law to Federal Court of Australia

(1) The Information Commissioner may, at any time during an IC review, refer a question of law arising in an IC review to the Federal Court of Australia for decision. (2) The Information Commissioner may refer the question of law: (a) on the application of a review party; or (b) on the Information Commissioner’s initiative. (3) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it. (4) The jurisdiction of the Federal Court of Australia may be exercised by a single judge of the Court. (5) If a question of law is referred, the Information Commissioner must not, for the purposes of the IC review: (a) give a decision to which the question is relevant before the Federal Court of Australia makes a decision in relation to the reference; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.

55J

Procedure in IC review—sending of documents to, and disclosure of documents by, the Federal Court of Australia If a question of law is referred under section 55H:

(a) the Information Commissioner must cause all documents and information in the possession of the Information Commissioner that relate to the IC review and to the reference to be sent to the Federal Court of Australia; and (b) at the conclusion of the proceeding before the Federal Court of Australia, the Court must cause the documents to be returned to the Information Commissioner.

Division 7—Decision on IC review 55K

Decision on IC review—decision of Information Commissioner

(1) After undertaking an IC review, the Information Commissioner must make a decision in writing: (a) affirming the IC reviewable decision; or (b) varying the IC reviewable decision; or (c) setting aside the IC reviewable decision and making a decision in substitution for that decision. (2) For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision. [page 225] (3) A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision. Content of the decision (4) A decision on an IC review must include the following:

(a) a statement of reasons for the decision; (b) a statement of the rights of the review parties to apply to the Tribunal for review of the decision under section 57A. (5) However, a decision on an IC review must not include: (a) information of the kind referred to in subsection 25(1); or (b) exempt matter. Note:

Subsection 25(1) deals with information about the existence or otherwise of certain documents.

Providing copy of decision (6) The Information Commissioner must give a copy of a decision on an IC review to each review party. Copy of decision prima facie evidence (7) A document is prima facie evidence of a decision on an IC review if: (a) the document purports to be a copy of the decision; and (b) the document purports to be certified by, or on behalf of, the Information Commissioner to be a true copy of the decision. Publication requirement (8) The Information Commissioner must publish a decision on an IC review to members of the public generally.

55L

Decision on IC review—no power to give access to exempt documents

(1) This section applies if it is established in proceedings on an IC review that a document is an exempt document. (2) The Information Commissioner does not have power to decide that access to the document is to be given, so far as it contains exempt matter.

55M

Decision on IC review—limitation on amending records

(1) The Information Commissioner may, in a decision under section 55K,

make a decision that requires, or has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following: (a) the opinion was based on a mistake of fact; [page 226] (b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. (2) The Information Commissioner must not, in a decision under section 55K, make a decision that requires, or has the effect of requiring, that an amendment be made to a record if he or she is satisfied of either of the following: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; (b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal. (3) In this section: enactment includes a Norfolk Island enactment.

55N

Decision on IC review—obligation to comply with decision

A principal officer of an agency or a Minister must comply with a decision of the Information Commissioner under section 55K on an IC review.

55P

Decision on IC review—enforcement of decision against agency

(1) If the principal officer of an agency or a Minister fails to comply with section 55N, an application may be made to the Federal Court of Australia for an order directing the principal officer or Minister to comply. (2) The application may be made by: (a) the Information Commissioner; or (b) the IC review applicant. (3) The court may make any other orders that it thinks fit to secure compliance by the principal officer or the Minister. (4) An application under subsection (1) may only be made if: (a) the time has ended for making an application to the Tribunal under section 57A for review of the Information Commissioner’s decision; and (b) such an application is not made before the end of the time.

55Q

Decision on IC review—correction of errors

(1) The Information Commissioner may correct an obvious error in a decision under section 55K of the Information Commissioner on an IC review. Example:

The following are examples of obvious errors: (a) an obvious clerical or typographical error in the text of the decision or statement of reasons; (b) an inconsistency between the decision and the statement of reasons.

[page 227] (2) The Information Commissioner may correct an obvious error: (a) on an application by a review party; or

(b) on the Information Commissioner’s initiative.

Division 8—Information gathering powers 55R

Information gathering powers—obliging production of information and documents

Scope (1) This section applies if the Information Commissioner has reason to believe that a person has information, or a document, relevant to an IC review. (2) This section applies subject to sections 55T (exempt documents generally) and 55U (particular exempt documents). Notice to produce (3) The Information Commissioner may, by written notice, require a person to, for the purposes of an IC review: (a) give the Information Commissioner information of a kind specified by the notice; or (b) produce to the Information Commissioner a document specified by the notice. (4) The notice must: (a) be in writing; and (b) specify the place at which the person must comply with the notice; and (c) state that the person must comply with the notice: (i)

within a specified period that is not less than 14 days after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the time at which the person is given the notice.

Offence for failure to comply (5) A person commits an offence if: (a) the person is subject to a requirement specified in a notice under subsection (3); and (b) the person engages in conduct; and (c) the person’s conduct breaches the requirement. Penalty for a contravention of this subsection: Imprisonment for 6 months. Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

[page 228]

55S

Information gathering powers—dealings with documents

What the Information Commissioner may do with documents (1) The Information Commissioner may do any of the following in relation to any documents produced in accordance with a notice under subsection 55R(3): (a) take possession of the documents; (b) make copies of the documents; (c) take extracts from the documents; (d) hold the documents for a period that is necessary for the purposes of the IC review. Information Commissioner must permit access by those entitled (2) For the purposes of an IC review, the Information Commissioner must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Information

Commissioner. (3) The Information Commissioner must permit the person to inspect the document at any reasonable time.

55T

Information gathering powers—production of exempt documents generally

Scope (1) This section applies to an IC review of a decision in relation to a document if: (a) the principal officer of an agency or a Minister claims that the document is an exempt document; and (b) section 55U does not apply to the document. Note:

Section 55U deals with the production of documents that are claimed to be exempt documents under section 33 (national security etc.), 34 (Cabinet documents) or 45A (Parliamentary Budget Office documents).

Exempt document produced under obligation (2) The Information Commissioner may, for the purposes of deciding whether the document is an exempt document, require the document to be produced. (3) If the Information Commissioner is satisfied that the document is an exempt document, the Information Commissioner must return the document to the person by whom it was produced. [page 229] Production to determine whether access can be given to part of document (4) The Information Commissioner may require the production of an exempt document for the purpose of determining whether it is

practicable for an agency or a Minister to give access to an edited copy of the document. (5) If the document is produced to the Information Commissioner (whether under this section or voluntarily), only the following persons may have access to the document, or to the contents of the document: (a) the Information Commissioner; (b) a member of the staff of the Information Commissioner in the course of the performance of his or her duties as a member of that staff.

55U

Information gathering powers—production of national security, Cabinet or Parliamentary Budget Office documents

(1) This section applies to an IC review of a decision in relation to a document that is claimed to be an exempt document under section 33 (national security documents), 34 (Cabinet documents) or 45A (Parliamentary Budget Office documents). (2) The Information Commissioner may only require the production of the document in accordance with this section. (3) If the Information Commissioner is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33, 34 or 45A, the Information Commissioner may require the document to be produced for inspection by the Information Commissioner. (4) If the Information Commissioner is satisfied that the document is an exempt document, the Information Commissioner must return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person, unless the person is: (a) the Information Commissioner; or (b) a member of the staff of the Information Commissioner in the

course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 55ZD(3)(a)—the Inspector-General of Intelligence and Security.

55V

Information gathering powers—further searches for a document

(1) This section applies to an IC review in relation to a request for access to a document if: (a) access to the document is refused under section 24A (document cannot be found etc.); or (b) access is purportedly given to the document (amongst others to which the request relates), but is not actually given. [page 230] (2) The Information Commissioner may require the agency or Minister concerned to conduct further searches for the document.

55W Information gathering powers—obliging persons to appear Notice to appear (1) The Information Commissioner may, by written notice, require a person to appear before the Information Commissioner to answer questions for the purposes of an IC review. (2) The notice must: (a) be in writing; and (b) state that the person must comply with the notice at a specified time that is not less than 14 days after the time at which the person is given the notice; and

(c) specify the place at which the person must comply with the notice. Offence for failure to comply (3) A person commits an offence if: (a) the person is subject to a requirement specified in a notice under subsection (1); and (b) the person engages in conduct; and (c) the person’s conduct breaches the requirement. Penalty for a contravention of this subsection: 6 months imprisonment. Note:

55X

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Information gathering powers—administration of oath or affirmation

(1) If, by a notice under subsection 55W(1), the Information Commissioner requires a person to appear before him or her, the Information Commissioner may: (a) administer an oath or affirmation to the person; and (b) examine the person on oath or affirmation. (2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true. (3) A person commits an offence if: (a) the person is required under this section to be examined on oath or affirmation; and (b) the person engages in conduct; and (c) the person’s conduct breaches that requirement. Penalty for a contravention of this subsection: 6 months imprisonment. Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

[page 231]

55Y

Information gathering powers—no loss of legal professional privilege Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.

55Z

Information gathering powers—protection from liability

(1) This section applies if a person does any of the following in good faith for the purposes of an IC review: (a) gives information; (b) produces a document; (c) answers a question. (2) If this section applies, then: (a) civil proceedings do not lie against a person because the person does any of the matters mentioned in paragraphs (1)(a) to (c); and (b) the person is not liable for a penalty under a provision of any law because the person does any of those matters. (3) This section applies whether or not the person is required to do a thing mentioned in subsection (1) in accordance with this Division.

Division 9—Evidence by Inspector-General of Intelligence and Security 55ZA Evidence by Inspector-General of Intelligence and Security—scope This Division applies in an IC review of a decision in relation to a

document that is claimed to be an exempt document under section 33 (national security documents).

55ZB Evidence by Inspector-General of Intelligence and Security— request to give evidence (1) Before determining that a document is not an exempt document under section 33, the Information Commissioner must request the InspectorGeneral of Intelligence and Security to appear personally and give evidence on: (a) the damage that would, or could reasonably be expected to, be caused to: (i)

the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; if access to the document were given in accordance with the request; or (b) whether giving access to the document in accordance with the request would divulge any information or matter communicated in confidence [page 232] by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. (2) Before determining that an agency or Minister must grant access to a copy of the document with deletions, the Information Commissioner must request the Inspector-General to appear personally and give

evidence on: (a) the damage that would, or could reasonably be expected to, be caused to: (i)

the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; if the proposed deletions were not made; or (b) whether giving access to the document without the proposed deletions would divulge any information or matter communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. (3) Before hearing the evidence of the Inspector-General, the Information Commissioner must hear any evidence to be given or submissions to be made by, or on behalf of, the agency to which, or the Minister to whom, the request was made for access to the document. (4) The Information Commissioner is not bound by any opinion of the Inspector-General expressed while giving evidence under this Division.

55ZC Evidence by Inspector-General of Intelligence and Security— compliance with request The Inspector-General of Intelligence and Security must comply with a request under section 55ZB unless, in the opinion of the InspectorGeneral, the Inspector-General is not appropriately qualified to give evidence on the matters in relation to which the Inspector-General has been requested to give evidence.

55ZD Evidence by Inspector-General of Intelligence and

Security— procedural matters (1) This section applies for the purposes of enabling the Inspector-General of Intelligence and Security to comply with a request under section 55ZB. (2) The Information Commissioner must allow the Inspector-General to take possession of, and make copies of or take extracts from, any document given to the Information Commissioner for the purposes of the proceeding. [page 233] (3) The Inspector-General may require the production of the following: (a) the document that is claimed to be an exempt document under section 33 by the agency to which or the Minister to whom the request was made for access to the document; (b) any document of an agency or official document of a Minister that relates to the document mentioned in subsection (2) by the agency or Minister. (4) The Inspector-General may make copies of, or take extracts from, the documents mentioned in subsection (3). (5) After the period that is reasonably necessary for the purposes of giving evidence to the Information Commissioner, the Inspector-General must: (a) return the original of any document to the Information Commissioner or to the agency or Minister; and (b) destroy any copies of or extracts taken from any document. (6) The Inspector-General must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Inspector-General. (7) The Inspector-General must permit the person to inspect the document

at all reasonable times. (8) The Information Commissioner must allow the Inspector-General a period within which to consider the documents mentioned in subsections (2) to (4) that is reasonable having regard to: (a) the nature of the evidence that the Inspector-General has been requested to give; and (b) the time required by the Inspector-General to perform the Inspector-General’s other functions.

Division 10—Appeals 56

Appeals—appeals to Federal Court of Australia on questions of law

(1) A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on an IC review. (2) An appeal under this section must be instituted: (a) either: (i)

not later than 28 days after the day a decision under section 55K of the Information Commissioner on an IC review is given to the review party; or

(ii) within the further time that the Federal Court of Australia allows; and (b) in any way that is prescribed by rules of court made under the Federal Court of Australia Act 1976. (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted under this section. [page 234]

(4) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under section 56A. (5) The Federal Court of Australia: (a) must hear and determine the appeal; and (b) may make any order or orders that it thinks appropriate by reason of its decision. (6) Without limiting subsection (5), the orders that the Federal Court of Australia may make include the following: (a) an order affirming the decision of the Information Commissioner; (b) an order setting aside the decision of the Information Commissioner and making a decision in substitution for the decision; (c) an order remitting the case to be considered and decided again by the Information Commissioner in accordance with the directions of the Court: (i)

with or without the holding of a hearing; and

(ii) with or without the hearing of further evidence.

56A

Appeals—Federal Court of Australia may make findings of fact

(1) If a review party appeals to the Federal Court of Australia under section 56, the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Information Commissioner (other than findings made by the Information Commissioner as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to all of the following: (i)

the extent (if any) to which it is necessary for facts to be found;

(ii) the means by which those facts might be established; (iii) the expeditious and efficient resolution of the whole of the

matter to which the IC review relates; (iv) the relative expense to the parties of the Court, rather than the Information Commissioner, making the findings of fact; (v) the relative delay to the parties of the Court, rather than the Information Commissioner, making the findings of fact; (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Information Commissioner, to make the findings of fact; (vii) such other matters (if any) as the Court considers relevant. (2) For the purposes of making findings of fact under subsection (1), the Federal Court of Australia may: (a) have regard to the evidence given in the IC review; and (b) receive further evidence. (3) Subsection (2) does not limit the Federal Court of Australia’s power under subsection 56(6) to make an order remitting the case to be heard and decided again by the Information Commissioner. [page 235]

Part VIIA—Review by the Tribunal Division 1—Guide to this Part 57

Review by the Tribunal—guide

An application may be made to the Administrative Appeals Tribunal for the review of certain decisions (see section 57A). Division 3 sets out the powers of the Tribunal in a review. Division 4 deals with the procedure to be followed in a review by the Tribunal. Division 5 deals with ensuring that exempt matter that comes before the Tribunal is protected from disclosure. Division 6 deals with the circumstances in which the Tribunal may make recommendations as to costs. Division 7 deals with the stay of decisions pending appeal to the Federal Court of Australia.

Division 2—Tribunal reviewable decisions 57A

Tribunal reviewable decisions—which decisions are reviewable?

(1) An application may be made to the Tribunal for review of the following decisions: (a) a decision of the Information Commissioner under section 55K on

an IC review; (b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision. Note 1:

Note 2:

An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975). Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.

[page 236] Time for applying to Tribunal if Information Commissioner declines to review decision (2) Despite subsection 29(2) of the Administrative Appeals Tribunal Act 1975, for the purposes of paragraph 29(1)(d) of that Act, the prescribed time for a person to lodge an application for review of an IC reviewable decision mentioned in paragraph (1)(b) of this section is the period: (a) starting on the day on which the decision by the Information Commissioner under paragraph 54W(b) of this Act is made; and (b) ending on the 28th day after the day on which notice of the decision under paragraph 54W(b) was given to the person under section 54X of this Act.

Division 3—Powers of Tribunal 58

Powers of Tribunal

(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to

decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. (2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted. (6) The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.

58A

Powers of Tribunal—requiring further searches

(1) This section applies to a review on an application to the Tribunal under section 57A if: (a) access to the document is refused under section 24A (document cannot be found etc.); or (b) access is purportedly given to the document (amongst others to which the request relates), but is not actually given. (2) For the purposes of the review, the Tribunal may require the agency or Minister concerned to conduct further searches for the document.

58AA Powers of Tribunal—limitation on amending records (1) The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following: [page 237] (a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. (2) The Tribunal must not, in a decision on an application under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; (b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal. (3) In this section: enactment includes a Norfolk Island enactment.

Division 4—Procedure in Tribunal 58B

Constitution of Tribunal for proceedings about certain exempt documents

(1) If an application is made to the Tribunal for review in relation to a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 33, 34 or 45A, then the Tribunal must be constituted in accordance with subsection (2) for the purposes of any proceeding in relation to the application. (2) For the purposes of a proceeding referred to in subsection (1), the Tribunal shall be constituted by: (a) 3 presidential members; or

(b) a presidential member alone. (3) In its application to a proceeding referred to in subsection (1), section 21A of the Administrative Appeals Tribunal Act 1975 applies as if: (a) subsection (1) of that section were omitted and the following subsection substituted: “(1) At any time during the hearing of a proceeding before the Tribunal constituted in accordance with subsection 58B(2) of the Freedom of Information Act 1982 by a presidential member alone, a party to the proceeding may make an application to the Tribunal as constituted for the purposes of that proceeding requesting that the Tribunal be reconstituted for the purposes of that proceeding.”; and (b) subsection (3) of that section were omitted and the following subsection substituted: [page 238] “(3) The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction varying the constitution of the Tribunal for the purposes of that proceeding so that the Tribunal is constituted by 3 presidential members.”. (4) In its application to a proceeding referred to in subsection (1), section 22 of the Administrative Appeals Tribunal Act 1975 applies as if there were inserted after paragraph (1)(aa) of that section the following paragraphs: “(ab)if the Tribunal is constituted by presidential members of whom at least 2 are Judges and none of whom is the President—the senior Judge shall preside; (ac) if the Tribunal is constituted by presidential members none of

whom is a Judge—one of those presidential members who is directed by the President to do so shall preside;”.

58D

Modification of section 42 of the Administrative Appeals Tribunal Act 1975

In its application to a proceeding referred to in subsection 58B(1) of this Act, section 42 of the Administrative Appeals Tribunal Act 1975 applies as if subsection (3) of that section were omitted and the following subsection substituted: “(3) A question of law arising in a proceeding before the Tribunal constituted in accordance with subsection 58B(2) of the Freedom of Information Act 1982 by 3 presidential members shall: (a) in a case where one only of those members is a Judge—be decided according to the opinion of that member; and (b) in a case where 2 of those members are Judges—be decided according to the opinion of the majority; and (c) in a case where 3 of those members are Deputy Presidents—be decided according to the opinion of the majority.”.

58E

Production to the Tribunal of certain exempt documents

(1) In any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, 34 or 45A, the Tribunal is entitled to require the production of the document in accordance with this section and not in accordance with section 64, section 37 of the Administrative Appeals Tribunal Act 1975 or otherwise. (2) If the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33, 34 or 45A, the Tribunal may require the document to be produced for inspection by the Tribunal as constituted for the purposes of the proceeding.

(3) If, after an inspection of a document under this section, the Tribunal is satisfied that the document is an exempt document, the Tribunal must [page 239] return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person, unless the person is: (a) a member of the Tribunal as constituted for the purposes of the proceeding; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

60

Procedure in Tribunal—parties

(1) This section applies for the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in relation to proceedings under this Part. (2) A decision given by a person on behalf of an agency is taken to have been given by the agency. (3) The parties to a proceeding before the Tribunal for a review of a decision are as follows: (a) the person who applied to the Tribunal for a review of the decision under section 57A; (b) the person who made the request or application in respect of which the decision was made; (c) the principal officer of the agency, or the Minister, to whom the request or application was made; (d) any other person who is made a party to the proceeding by the

Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.

60AA Procedure in Tribunal—requirement to notify affected third parties Scope (1) This section applies if an application is made to the Tribunal under section 57A for the review of a decision not to give access to a document to which a consultation requirement applies under section 26A, 26AA, 27 or 27A (whether the decision is made by the Information Commissioner, an agency or a Minister). Requirement to notify (2) The agency to which, or the Minister to whom, the request was made for access to the document must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application to the Tribunal. [page 240] Note 1: Note 2: Note 3:

For affected third party, see section 53C. Notice is not required to be given in certain circumstances (see section 60AB). The affected third party may apply to be made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.

60AB Procedure in Tribunal—circumstances in which not giving notice is appropriate (1) This section applies in relation to a document to which a consultation requirement applies under section 27 or 27A. (2) An agency or Minister is not required to notify an affected third party

for the document under subsection 60AA(2) if: (a) the agency or the Minister applies to the Tribunal for an order that it would not be appropriate to notify the affected third party in the circumstances covered by subsection (3); and (b) the Tribunal makes the order. Note:

For affected third party, see section 53C.

(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following: (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation; (b) prejudice the enforcement or proper administration of the law in a particular instance; (c) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; (d) endanger the life or physical safety of any person; (e) cause damage to the security, defence or international relations of the Commonwealth.

60A

Inspector-General of Intelligence and Security must be requested to give evidence in certain proceedings

(1) This section applies in any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33. (2) Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence on:

the damage that would, or could reasonably be expected to, be (a) caused to: [page 241] (i)

the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; if access to the document were given in accordance with the request; or (b) whether giving access to the document in accordance with the request would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. (3) Before determining that an agency or Minister must grant access to a copy of the document with deletions, the Tribunal must request the Inspector-General to appear personally and give evidence on: (a) the damage that would, or could reasonably be expected to, be caused to: (i)

the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; if the proposed deletions were not made; or (b) whether giving access to the document without the proposed deletions would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority

of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. (4) Before hearing the evidence of the Inspector-General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of the agency to which or the Minister to whom the request was made for access to the document. (5) The Inspector-General must comply with a request under subsection (2) or (3) unless, in the opinion of the Inspector-General, the InspectorGeneral is not appropriately qualified to give evidence on the matters in relation to which the Inspector-General has been requested to give evidence. (6) For the purposes of enabling the Inspector-General to comply with a request under subsection (2) or (3): (a) the Tribunal must allow the Inspector-General to take possession of, and make copies of or take extracts from, any document given to the Tribunal for the purposes of the proceeding; and (b) the Inspector-General may require the production of the document that is claimed to be an exempt document under section 33 by the agency to which or the Minister to whom the request was made for access to the document; and [page 242] (c) the Inspector-General may require the production of any document of an agency or official document of a Minister that relates to the document mentioned in paragraph (b) by the agency or Minister; and

(d) the Inspector-General may make copies of, or take extracts from, the documents mentioned in paragraphs (b) and (c); and (e) after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal, the Inspector-General must: (i)

return the original of any document to the Tribunal or to the agency or Minister; and

(ii) destroy any copies of or extracts taken from any document. (7) The Inspector-General must permit a person who would be entitled to inspect a document mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector-General to inspect the document at all reasonable times as the person would be so entitled. (8) The Tribunal is not bound by any opinion of the Inspector-General expressed while giving evidence under this section. (9) The Tribunal must allow the Inspector-General a period within which to consider the documents mentioned in paragraphs (6)(a) to (d) that is reasonable having regard to: (a) the nature of the evidence that the Inspector-General has been requested to give; and (b) the time required by the Inspector-General to perform the Inspector-General’s other functions. (10) The fact that a person is obliged to produce a document under subsection (6) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.

61

Onus

(1) In proceedings under this Part for review of a decision in relation to a request, or in relation to an application under section 48 (a personal records application): (a) if an agency or a Minister applied for the review—the agency or Minister has the onus of establishing that the decision is not

justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request or the personal records application; or (b) if the applicant in relation to the request or the personal records application applied for the review—the agency to which, or the Minister to whom, the request or personal records application was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant. (2) However, in proceedings under this Part that relate to a decision to give access to a document to which a consultation requirement applies under section 26A, 26AA, 27 or 27A, an affected third party for the document in relation to which the decision was made has, if the affected third party is a party to the proceeding, the onus of establishing that: [page 243] (a) a decision refusing to give access to the document is justified; or (b) the Tribunal should give a decision adverse to the person who made the relevant request. Note:

61A

For affected third party, see section 53C.

Modification of the Administrative Appeals Tribunal Act 1975

(1) The Administrative Appeals Tribunal Act 1975 applies to proceedings under this Part in the way set out in the following table: Modification of the Administrative Appeals Tribunal Act 1975 Item A reference to … in the following is taken to be a provision of the reference to … Administrative Appeals Tribunal Act

1

2

3

4

5

6

7

8

1975: the person who made subsection 29(11) each of the review the decision (notification of review parties. application) the person who made (a) subsection the agency or the decision 33(1AA) Minister who made (requirement to the IC reviewable assist Tribunal); decision. (b) paragraph 33(2A)(b) (procedural directions) the person who made subsection 37(1) or the agency or the decision that is (1AF) (lodging Minister who made the subject of the material with the IC reviewable application for a Tribunal) decision. review by the Tribunal the person who made subsection 37(1A) or the agency or the decision (1B) (deadlines for Minister who made lodging documents) the IC reviewable decision. the person who made subsection 41(4) (stay each of the review the decision to which of decisions being parties. the relevant reviewed) proceeding relates the person who made subsection 41(5) (stay each of the review the decision of decisions being parties. reviewed) the person who made subsection 42A(2) the agency or the decision (dismissal for failure Minister who made to appear) the IC reviewable decision. the person who made section 67A (giving of the person who made a decision notices)

the decision or an agency. (2) The agency or Minister who made the IC reviewable decision is taken to have complied with the obligation under paragraph 37(1)(a) of the Administrative Appeals Tribunal Act 1975 if the agency or Minister gives the AAT the number of copies prescribed by the regulations of the decision [page 244] under section 55K in relation to which an application has been made to the Tribunal. (3) Subsection (2) does not limit the powers of the Tribunal under section 38 of the Administrative Appeals Tribunal Act 1975.

62

Application of section 28 of Administrative Appeals Tribunal Act etc.

(1) Where, in relation to a decision in respect of a request, the applicant has been given a notice in writing under section 26, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to that decision. (2) If the Tribunal, upon application for a declaration under this subsection made to it by a person to whom a notice has been furnished in pursuance of subsection 26(1), considers that the notice does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Tribunal may make a declaration accordingly, and, where the Tribunal makes such a declaration, the person responsible for furnishing the notice shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, furnish to the applicant

an additional notice or additional notices containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons.

Division 5—Protection of information in Tribunal 63

Tribunal to ensure non-disclosure of certain matters

(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal must: (a) have regard to: (i)

the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and

(ii) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and (b) where the proceedings relate to a document that is claimed to be an exempt document under section 33—give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document: (i)

would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or [page 245]

would divulge information or matter communicated in (ii) confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. (2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975: (a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and (b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).

64

Production of exempt documents

(1) Section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only. (1AA) If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is: (a) a member of the Tribunal as constituted for the purposes of the

proceeding; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security. (1A) If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only: (a) the members of the Tribunal as constituted for the purposes of the review; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; may inspect, or have access to, the document. (2) The Tribunal may require the production, for inspection by members of the Tribunal only, of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to grant access to [page 246] a copy of the document with such deletions as to make the copy not an exempt document and, where an exempt document is produced by reason of such a requirement, the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is: (a) a member of the Tribunal as constituted for the purposes of the

proceeding; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security. Note:

The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33, 34 or 45A, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.

(4A) In making an order for the purposes of subsection (1) or (2), the Tribunal may require the relevant document to be produced at any time later than 28 days after the decision-maker was given notice of the application, even if that time is before the Tribunal has begun to hear argument or otherwise deal with the matter. (5) Subsections (1), (1A) and (2) apply in relation to a document in the possession of a Minister that is claimed by the Minister not to be an official document of the Minister as if references in those subsections to an exempt document were references to a document in the possession of a Minister that is not an official document of the Minister. (6) Subsection (1), (1A) or (2) does not operate so as to prevent the Tribunal from causing a document produced in accordance with that subsection to be sent to the Federal Court of Australia in accordance with section 46 of the Administrative Appeals Tribunal Act 1975, but, where such a document is so sent to the Court, the Court shall do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than a member of the Court as constituted for the purpose of the proceeding before the Court or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff. (7) Subsection (6) does not prevent the Federal Court of Australia from causing the document concerned to be sent to the Federal Circuit Court

of Australia as mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal Act 1975. (8) If a document produced in accordance with subsection (1), (1A) or (2) is sent to the Federal Circuit Court of Australia as mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Federal Circuit Court of Australia must do all things necessary to [page 247] ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than: (a) the Judge who constitutes the Federal Circuit Court of Australia for the purposes of the proceeding before the Federal Circuit Court of Australia; or (b) a member of the staff of the Federal Circuit Court of Australia in the course of the performance of his or her duties as a member of that staff.

Division 6—Recommendations as to costs 66

Tribunal may make recommendation that costs be available in certain circumstances

(1) Where: (a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and (b) the person is successful, or substantially successful, in his or her application for review; the Tribunal may, in its discretion, recommend to the responsible

Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth or Norfolk Island. (2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to: (a) the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant; (b) the question whether the decision of the Tribunal on review will be of benefit to the general public; (c) the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and (d) the reasonableness of the decision reviewed by the Tribunal. (3) The responsible Minister may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.

Division 7—Automatic stay of certain decisions 67

Automatic stay of certain decisions on appeal

(1) This section applies if: (a) a person applies, under section 57A, to the Tribunal for review in relation to a decision by an agency or Minister refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document; and [page 248]

(b)

the Tribunal decides that a person may have access to the document; and

(c) the agency or the Minister institutes an appeal to the Federal Court of Australia from the decision of the Tribunal. (2) If this section applies to a decision of the Tribunal, the operation of the decision is stayed by force of this section from the time at which the appeal is instituted. (3) If the agency or the Minister appeals to the Federal Court of Australia from the decision of the Tribunal and the appeal in relation to the decision is determined by the Federal Court of Australia, the stay continues to have effect until the earlier of: (a) the time at which the decision of the Federal Court of Australia on the appeal takes effect; and (b) the time otherwise determined by the Federal Court of Australia. (4) If the agency or the Minister appeals to the Federal Court of Australia from the decision of the Tribunal and the appeal in relation to the decision is determined by the Federal Circuit Court of Australia, the stay continues to have effect until the earlier of: (a) the time at which the decision of the Federal Circuit Court of Australia on the appeal takes effect; and (b) the time otherwise determined by the Federal Circuit Court of Australia. (5) Nothing in this section affects the power of the Federal Court of Australia or the Federal Circuit Court of Australia to make orders under section 44A of the Administrative Appeals Tribunal Act 1975 in relation to matters other than staying the decision of the Tribunal.

[page 249]

Part VIIB—Investigations and complaints Division 1—Guide to this Part 68

Investigations and complaints—guide This Part is about investigations by the Information Commissioner and by the Ombudsman. Division 2 sets up a system for investigations by the Information Commissioner. The Information Commissioner may investigate an action taken by an agency in the performance of functions or the exercise of powers under this Act on a complaint from a person, or on the Information Commissioner’s initiative. If a person disputes the merits of an access refusal decision or an access grant decision, this Act provides elsewhere for the review of that decision (see Parts VI, VII and VIIA). However, this does not prevent a person from making a complaint to the Information Commissioner about the way in which the agency has handled the decision. The Information Commissioner has powers to obtain documents, to question persons and to enter premises (see Subdivision D of Division 2). At the conclusion of the investigation, the Information

Commissioner must give a notice to the complainant and to the respondent agency about the Information Commissioner’s findings, with any recommendations that the Information Commissioner believes the agency ought to implement (see section 86). If the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations, the Information Commissioner may take further steps (see sections 89, 89A and 89B). Division 3 deals with the investigation of complaints by the Ombudsman about action taken under this Act.

[page 250]

Division 2—Information Commissioner investigations Subdivision A—Power to investigate 69

Information Commissioner investigations—power to investigate

Obligation to investigate (1) The Information Commissioner must, subject to this Division, investigate a complaint made under section 70. Discretion to investigate (2) The Information Commissioner

may,

at

the

Information

Commissioner’s initiative, investigate an action taken by an agency (the respondent agency) in the performance of functions, or the exercise of powers, under this Act.

Subdivision B—Making complaints 70

Information Commissioner investigations—making complaints

(1) A person (the complainant) may complain to the Information Commissioner about an action taken by an agency in the performance of functions, or the exercise of powers, under this Act. (2) A complaint must: (a) be in writing; and (b) identify the agency (also the respondent agency) in respect of which the complaint is made. (3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who: (a) wishes to make a complaint; and (b) requires assistance to formulate the complaint.

Subdivision C—Decision to investigate 71

Information Commissioner investigations— interpretation This Subdivision applies to a part of a complaint as if: (a) a reference to a complaint were a reference to the part of the complaint; and (b) a reference to an action were a reference to an action to which the part of the complaint relates. [page 251]

72

Information Commissioner investigations—preliminary inquiries The Information Commissioner may make inquiries of the respondent agency for the purpose of determining whether or not to investigate a complaint made (or purported to be made) under section 70.

73

Information Commissioner investigations—discretion not to investigate The Information Commissioner may decide not to investigate, or not to continue to investigate, a complaint about an action made under section 70 if the Information Commissioner is satisfied of any of the following: (a) that the action is not taken by an agency in the performance of the agency’s functions or the exercise of the agency’s powers under this Act; (b) that: (i)

the complainant has or had a right to cause the action to be reviewed by the respondent agency, the Information Commissioner, a court or a tribunal; and

(ii) the complainant has not exercised, or did not exercise, the right; and (iii) it would be, or would have been, reasonable for the complainant to exercise the right; (c) that: (i)

the complainant has or had a right to complain about the action to another body; and

(ii) the complainant has not exercised, or did not exercise the right; and (iii) it would be, or would have been, reasonable for the complainant to exercise the right; (d) that the complainant has complained to the respondent agency, and

the respondent agency: (i)

has dealt, or is dealing, adequately with the complaint; or

(ii) has not yet had an adequate opportunity to deal with the complaint; (e) that the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; (f)

that the complainant does not have a sufficient interest in the subject matter of the complaint.

Note:

The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).

[page 252]

74

Information Commissioner investigations—transfer to Ombudsman

Scope (1) This section applies if the Information Commissioner is satisfied that a complaint about an action could be more effectively or appropriately dealt with: (a) by the Ombudsman under the Ombudsman Act 1976; or (b) by the Ombudsman under a particular Norfolk Island enactment. Example 1:

A complaint about the way in which the Information Commissioner has dealt with an IC review.

Example 2:

A complaint relates to an action under this Act, but is part of a complaint that relates to other matters that can be more appropriately dealt with by the Ombudsman.

Transfer of complaints to Ombudsman (2) The Information Commissioner:

must consult the Ombudsman about the complaint with a view to (a) avoiding inquiries being conducted into that matter by both the Information Commissioner and the Ombudsman; and (b) may decide not to investigate the action, or not to continue to investigate the action. (3) If the Information Commissioner decides not to investigate, or not to continue to investigate, the action under paragraph (2)(b), the Information Commissioner must: (a) transfer the complaint to the Ombudsman; and (b) give the Ombudsman any information or documents that relate to the complaint in the possession, or under the control, of the Information Commissioner; and (c) notify the complainant in writing that the complaint has been transferred. (4) A notice under paragraph (3)(c) must state the reasons for the Information Commissioner’s decision. (5) If paragraph (1)(a) applies, a complaint transferred under subsection (3) is taken to be a complaint made to the Ombudsman under the Ombudsman Act 1976. (6) If paragraph (1)(b) applies, a complaint transferred under subsection (3) is taken to be a complaint made to the Ombudsman under the Norfolk Island enactment concerned. Note:

The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).

[page 253]

75

Information Commissioner investigations—notice requirements

Notice to respondent agency before commencing investigation (1) Before beginning an investigation, the Information Commissioner must notify the respondent agency in writing. Notice of decision not to investigate, or not to continue to investigate (2) Subsection (3) applies if the Information Commissioner decides: (a) not to investigate, or not to continue to investigate, a complaint made under section 70; or (b) not to continue an investigation commenced at the Information Commissioner’s initiative. (3) The Information Commissioner must, as soon as practicable, notify the complainant (if any) and the respondent agency of the decision in writing. (4) A notice under subsection (3) must state the reasons for the Information Commissioner’s decision.

Subdivision D—Investigation procedure 76

Information Commissioner investigations—conduct of investigation

(1) An investigation must be conducted in private and in a way the Information Commissioner thinks fit. (2) For the purposes of an investigation, the Information Commissioner may obtain information from any officer of an agency, and make any inquiry, that he or she thinks is relevant to the investigation.

77

Information Commissioner investigations—general power to enter premises

(1) If a consenting person consents to entry under paragraph (2)(a), an authorised person may, at any reasonable time of day arranged with the consenting person: (a) enter and remain at the place; or

(b) carry on the investigation at that place; or (c) inspect any documents relevant to the investigation kept at the place. Note:

For consenting person, see subsection (3).

Authority to enter premises (2) The authorised person may enter a place that: (a) is occupied by an agency; or [page 254] (b) is occupied by a contracted service provider and used by the contracted service provider predominantly for the purposes of a Commonwealth contract. (3) The authorised person may enter a place only if: (a) consent to the entry has been given by the person (the consenting person) who is: (i)

in the case of an agency—the principal officer of the agency; or

(ii) in the case of a contracted service provider—the person in charge (however described) of the contracted service provider; and (b) before giving the consent, the authorised person informed the consenting person that he or she may refuse consent. (4) The authorised person must leave the premises if the consenting person asks the authorised person to do so. (5) This section is subject to section 78. Who is an authorised person? (6) An authorised person is:

an information officer (within the meaning of the Australian (a) Information Commissioner Act 2010); or (b) an APS employee who: (i)

is performing the duties of an Executive Level 2, or equivalent, position (or a higher position) in the Office of the Australian Information Commissioner; and

(ii) is authorised by the Information Commissioner for the purposes of this section.

78

Information Commissioner investigations—places for which approval required before entry

Specific places and areas (1) Subsection (2) applies if an authorised person proposes to enter, or carry on an investigation, at any of the following: (a) a place referred to in paragraph 80(c) of the Crimes Act 1914; (b) a place that is a prohibited area for the purposes of the Defence (Special Undertakings) Act 1952 because of section 7 of that Act; (c) an area of land or water or an area of land and water that is declared under section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area for the purposes of that Act. (2) If this subsection applies, the authorised person must not enter, or carry on an investigation, unless: (a) the Minister administering that Act, or another Minister acting for and on behalf of the Minister, has, in writing, approved the entry or carrying on of the investigation; and [page 255] (b) the authorised person complies with any conditions specified in the

approval. Places in respect of which Attorney-General makes declaration (3) The Attorney-General may, by notice in writing to the Information Commissioner, declare a place to be a prohibited place if the AttorneyGeneral is satisfied that the carrying on of an investigation at the place might prejudice the security or defence of the Commonwealth. (4) If a declaration under subsection (3) is in force, an authorised person must not enter, or carry on an investigation at, the prohibited place unless: (a) a Minister specified in the declaration, or another Minister acting for and on behalf of the Minister, has, in writing, approved the entry or carrying on of the investigation; and (b) the authorised person complies with any conditions specified in the approval.

79

Information Commissioner investigations—obliging production of information and documents

Scope (1) This section applies if the Information Commissioner has reason to believe that a person has information, or a document, relevant to an investigation under this Part. (2) This section applies subject to section 81 (production of exempt documents). Notice to produce (3) The Information Commissioner may, by written notice, require a person, for the purposes of the investigation: (a) to give the Information Commissioner information of the kind referred to in the notice; or (b) to produce to the Information Commissioner the document

referred to in the notice. (4) The notice must: (a) be in writing; and (b) specify the place at which the person must comply with the notice; and (c) state that the person must comply with the notice: (i)

within a specified period that is not less than 14 days after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the time at which the person is given the notice. [page 256] Offence for failure to comply (5) A person commits an offence if: (a) the person is subject to a requirement specified in a notice under subsection (3); and (b) the person engages in conduct; and (c) the person’s conduct breaches the requirement. Penalty for a contravention of this subsection: Imprisonment for 6 months. Note:

80

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Information Commissioner investigations—dealings with documents

What the Information Commissioner may do with documents (1) The Information Commissioner may do one or more of the following with respect to any documents produced in accordance with a notice

under subsection 79(3): (a) take possession of the documents; (b) make copies of the documents; (c) take extracts from the documents; (d) hold the documents for a period that is necessary for the purposes of the investigation. Information Commissioner must permit access by those entitled (2) During an investigation the Information Commissioner must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Information Commissioner. (3) The Information Commissioner must permit the person to inspect the document at any reasonable time.

81

Information Commissioner investigations—exempt documents Sections 55T and 55U apply to an investigation under this Part as if a reference in those sections to an IC review of a decision were a reference to an investigation of a complaint made under section 70. Note:

Sections 55T and 55U deal with access by the Information Commissioner to exempt documents.

[page 257]

82

Information Commissioner investigations—obliging persons to appear

Notice to require person to appear (1) The Information Commissioner may, by written notice, require a person to appear before the Information Commissioner to answer questions for

the purposes of an investigation. (2) The notice must: (a) be in writing; and (b) state that the person must comply with the notice at a specified time that is not less than 14 days after the time at which the person is given the notice; and (c) specify the place at which the person must comply with the notice. Offence for failure to comply (3) A person commits an offence if: (a) the person is subject to a requirement specified in a notice under subsection (1); and (b) the person engages in conduct; and (c) the person’s conduct breaches the requirement. Penalty for a contravention of this subsection: 6 months imprisonment. Note:

83

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Information Commissioner investigations— administration of oath or affirmation

(1) If, by a notice under subsection 82(1), the Information Commissioner requires a person to appear before him or her, the Information Commissioner may: (a) administer an oath or affirmation to the person; and (b) examine the person on oath or affirmation. (2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true. (3) A person commits an offence if: (a) the person is required under this section to be examined on oath or

affirmation; and (b) the person engages in conduct; and (c) the person’s conduct breaches that requirement. Penalty for a contravention of this subsection: 6 months imprisonment. Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

[page 258]

84

Information Commissioner investigations—no loss of legal professional privilege Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.

85

Information Commissioner investigations—protection from liability

(1) This section applies if a person does any of the following in good faith for the purposes of an investigation: (a) gives information; (b) produces a document; (c) answers a question. (2) If this section applies, then: (a) civil proceedings do not lie against a person because the person does any of the matters mentioned in paragraphs (1)(a) to (c); and (b) the person is not liable for a penalty under a provision of any law because the person does any of those matters. (3) This section applies whether or not the person is required to do a thing mentioned in subsection (1) in accordance with this Division.

Subdivision E—Outcome of investigation 86

Information Commissioner investigations—notice on completion

Requirement to notify respondent agency (1) If the Information Commissioner completes an investigation, the Information Commissioner must, as soon as practicable, notify the respondent agency. (2) The notice must state the following: (a) the investigation results (see section 87); (b) the investigation recommendations (if any) (see section 88); (c) the reasons for the investigation results and the making of the investigation recommendations. (3) The respondent agency may give to the Information Commissioner any comments about the notice that the agency wishes to make. Requirement to notify complainant (if any) (4) The Information Commissioner must give a copy (or a copy prepared in accordance with subsection (5)) of the notice to the complainant (if any). [page 259] (5) However, if the copy of the notice would contain matters of the kind mentioned in subsection 89C(2), the Information Commissioner must prepare a copy of the report to give to the complainant that excludes those matters. Note:

87

Section 89D sets out further limitations on recommendations to amend records.

Information Commissioner investigations—what are

the investigation results? The investigation results, in relation to the investigation, are the following: (a) the matters that the Information Commissioner has investigated; (b) any opinions that the Information Commissioner has formed in relation to those matters; (c) any conclusions that the Information Commissioner has reached in relation to those matters; (d) any suggestions to the respondent agency the implementation of which the Information Commissioner believes might improve the processes of the agency; (e) any other information of which the Information Commissioner believes the respondent agency ought to be aware.

88

Information Commissioner investigations—what are the investigation recommendations? The investigation recommendations, in relation to the investigation, are the formal recommendations to the respondent agency that the Information Commissioner believes that the respondent agency ought to implement.

89

Information Commissioner investigations—failure to implement investigation recommendation

Scope (1) This section applies if: (a) the Information Commissioner completes an investigation; and (b) the Information Commissioner gives an agency a notice under section 86; and (c) the Information Commissioner is not satisfied that the agency has taken action that is adequate and appropriate in the circumstances

to implement the investigation recommendations for the investigation. [page 260] Giving implementation notices (2) The Information Commissioner may, by notice in writing (an implementation notice), require the respondent agency to: (a) give to the Information Commissioner particulars of any action that the agency proposes to take to implement the investigation recommendations for the investigation; and (b) give the particulars within the time specified in the notice. (3) The respondent agency must comply with the implementation notice.

89A

Information Commissioner investigations—failure to take action in response to implementation notice

Scope (1) This section applies if: (a) the Information Commissioner gives an implementation notice to a respondent agency; and (b) the Information Commissioner is satisfied that: (i)

the agency has not responded to the implementation notice within the time specified in the notice; or

(ii) the agency has not taken action that is adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation. Report to responsible Minister (2) The Information Commissioner may give a written report to the

responsible Minister that contains the matters set out in section 89B. Note:

For responsible Minister, see subsection 4(1).

Report to Minister (3) If the Information Commissioner gives a report to the responsible Minister under subsection (2), the Information Commissioner must give a copy (or a copy prepared in accordance with subsection (4)) of the report to the Minister (the FOI Minister) responsible for the administration of this Act. (4) However, if the copy of the report would contain matters of the kind mentioned in subsection 89C(2), the Information Commissioner must prepare a copy of the report to give to the FOI Minister that excludes those matters. (5) The FOI Minister must cause the copy of the report to be laid before each House of the Parliament. Note:

Section 89D sets out further limitations on recommendations to amend records.

[page 261]

89B

Information Commissioner investigations— requirements for report A report under subsection 89A(2) must: (a) include a copy of the notice given to the respondent agency under subsection 86(2) (notice on completion) and the implementation notice; and (b) give details of the respondent agency’s response (if any) to the implementation notice; and (c) state that the Information Commissioner is not satisfied that the agency has taken action that is adequate and appropriate in the

circumstances to implement the investigation recommendations for the investigation; and (d) state the action that the Information Commissioner believes, if taken by the agency, would be adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation.

89C

Information Commissioner investigations—ensuring non-disclosure of certain matters

(1) This section applies to the following documents: (a) a notice to a complainant under section 86 (notice on completion); (b) a report to the FOI Minister under subsection 89A(3) (failure to take action). (2) The Information Commissioner must not include in the document: (a) exempt matter; or (b) information of the kind referred to in subsection 25(1). Note:

89D

Subsection 25(1) deals with information about the existence or otherwise of certain documents.

Information Commissioner investigations—limitation on amending records

Scope (1) This section applies to the following documents: (a) a notice to a complainant under section 86 (notice on completion); (b) a report to the FOI Minister under subsection 89A(3) (failure to take action). [page 262] Restrictions on amendments

(2) The Information Commissioner may, in the document, recommend that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following: (a) the opinion was based on a mistake of fact; (b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. (3) The Information Commissioner must not, in the document, recommend that an amendment be made to a record if he or she is satisfied of either of the following: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; (b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal. (4) In this section: enactment includes a Norfolk Island enactment.

89E

Information Commissioner investigations—protection from civil action

(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because the firstmentioned person complains about an action under section 70. (2) Subsection (1) only applies if the complaint is made in good faith.

Division 3—Complaints to Ombudsman 89F

Complaints to Ombudsman—powers not affected This Part does not prevent the Ombudsman from exercising powers or

performing functions under the Ombudsman Act 1976 in accordance with that Act.

89G

Complaints to Ombudsman—report must not contain certain information

A report under subsection 12(3) or section 15 or 17 of the Ombudsman Act 1976 in relation to an action taken under this Act must not include: (a) exempt matter; or (b) information of the kind referred to in subsection 25(1). Note:

Subsection 25(1) deals with information about the existence or otherwise of certain documents.

[page 263]

89H

Complaints to Ombudsman—certain rights not affected by certificates

(1) This section applies if: (a) the Ombudsman has commenced an investigation of a decision made under this Act not to grant a request for access to a document; and (b) the Attorney-General furnishes a certificate to the Ombudsman under paragraph 9(3)(a), (c) or (d) of the Ombudsman Act 1976 in relation to that investigation. (2) The certificate does not affect the Ombudsman’s right to: (a) seek from any person the reasons for a decision made under this Act not to give access to an exempt document; or (b) require any person to give any information or to answer any questions concerning the decision.

89J

Complaints to Ombudsman—limitation on amending

records in reports under the Ombudsman Act 1976 (1) The Ombudsman may, in a report under section 15 of the Ombudsman Act 1976, recommend that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following: (a) the opinion was based on a mistake of fact; (b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. (2) The Ombudsman must not, in a report under section 15 of the Ombudsman Act 1976, recommend that an amendment be made to a record if he or she is satisfied of either of the following: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; (b) the decision whether to amend the record involves determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal. (3) In this section: enactment includes a Norfolk Island enactment. [page 264]

Part VIII—Miscellaneous Division 1—Vexatious applicants 89K

Vexatious applicants—declaration

(1) The Information Commissioner may, by written instrument (a vexatious applicant declaration), declare a person to be a vexatious applicant. Note 1:

Section 89L sets out the grounds on which a declaration may be made.

Note 2:

For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Information Commissioner may make a declaration: (a) on the application of an agency or Minister; or (b) on the Information Commissioner’s initiative. (3) If an agency or Minister has applied for a declaration, the agency or Minister has the onus of establishing that the Information Commissioner should make the declaration. (4) The Information Commissioner must, as soon as practicable, give written notice to the person in relation to whom the vexatious applicant declaration is made.

89L

Vexatious applicants—grounds for declaration

(1) The Information Commissioner may make a vexatious applicant declaration in relation to a person only if the Information Commissioner is satisfied of any of the following: (a) that: (i)

the person has repeatedly engaged in access actions; and

(ii) the repeated engagement involves an abuse of the process for the access action;

(b)

a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action;

(c) a particular access action in which the person engages would be manifestly unreasonable. (2) A person engages in an access action if the person does any of the following: (a) makes a request; (b) makes an application under section 48; (c) makes an application for internal review; (d) makes an IC review application. (3) The Information Commissioner must not make a declaration in relation to a person without giving the person an opportunity to make written or oral submissions. (4) In this section: abuse of the process for an access action includes, but is not limited to, the following: [page 265] (a) harassing or intimidating an individual or an employee of an agency; (b) unreasonably interfering with the operations of an agency; (c) seeking to use the Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court.

89M

Vexatious applicants—effect of declaration

(1) A vexatious applicant declaration has effect in accordance with the terms and conditions stated in the declaration. (2) Without limiting subsection (1), a vexatious applicant declaration in

relation to a person may provide that: (a) an agency or Minister may refuse to consider any of the following if made by the person without the written permission of the Information Commissioner: (i)

a request;

(ii) an application under section 48 (amendment of records); (iii) an application for internal review; and (b) the Information Commissioner may refuse to consider an IC review application made by the person. (3) If a decision is made as mentioned in subsection (2), the agency, Minister or the Information Commissioner (as the case requires) must, as soon as practicable, notify the vexatious applicant of the decision.

89N

Vexatious applicants—review by Tribunal

An application may be made to the Tribunal for a review of a decision under section 89K of the Information Commissioner to make a vexatious applicant declaration. Note 1:

An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).

Note 2:

Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.

Note 3:

Section 30 of the Administrative Appeals Tribunal Act 1975 sets out who the parties are to a proceeding before the Tribunal.

Division 2—General 89P

Staff to hold appropriate security clearance The Information Commissioner must take all reasonable steps to ensure that a member of the staff of the Office of the Australian Information

Commissioner who performs functions or exercises powers for the purposes of this Act is given a security clearance at an appropriate level. Note:

Security clearances are given in accordance with the Australian Government Protective Security Manual.

[page 266]

90

Protection against civil liability—general

(1) No action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, Norfolk Island, a Minister, an agency or an officer of an agency because the Minister, or an officer of the agency: (a) publishes a document in good faith, in the belief that the publication is required or permitted under Part II (information publication scheme) or section 11C (publication of information in accessed documents); or (b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or (c) publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power). (2) No action for defamation, or breach of confidence, in respect of the publication of a document covered by subsection (3), lies against a person (including the author of the document) because the person supplied the document to a Minister or an agency. (3) The publication of a document is covered by this subsection if: (a) it is published as mentioned in paragraph (1)(a) or (c); or (b) its publication is involved in, or results from, the giving of access to the document (or another document) as mentioned in paragraph

(1)(b) or (c).

91

Protection against civil liability—particular situations

(1A) Section 90 applies in relation to the giving of access to a document even if, in giving access, there has been a failure to comply with section 26A, 26AA, 27 or 27A. (1B) No action lies against the Commonwealth, Norfolk Island, an agency, a Minister or an officer merely because of a failure to comply with section 26A, 26AA, 27 or 27A in relation to giving access to a document. (1C) If a document has been shown to a person, organisation or proprietor for any of the following purposes: (a) consultation with a State under subsection 26A(2); (aa) consultation with the Commonwealth or a State under subsection 26AA(2); (b) enabling the person, organisation or proprietor to make a submission under subsection 27(4); (c) enabling the person or the person’s legal personal representative to make a submission under subsection 27A(3); then: (d) no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, Norfolk Island, an agency, a Minister or an officer because of the showing of the document; and [page 267] (e) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the showing of the document lies against the author of the document or any other person because of that author or other person having shown the

document. (2) The giving of access to a document (including an exempt document) in consequence of a request shall not be taken to constitute an authorization or approval: (a) for the purposes of the law relating to defamation or breach of confidence—of the publication of the document or its contents by the person to whom access is given; (b) for the purposes of the law of copyright—of the doing, by the person to whom access is given, of any act comprised within the copyright in: (i)

any literary, dramatic, musical or artistic work;

(ii) any sound recording, cinematograph film, television broadcast or sound broadcast; or (iii) a published edition of a literary, dramatic, musical or artistic work; contained in the document. (2A) If a document has been shown to a person, organisation or proprietor for any of the following purposes: (a) consultation with a State under subsection 26A(1); (aa) consultation with the Commonwealth or a State under subsection 26AA(2); (b) enabling the person, organisation or proprietor to make a submission under subsection 27(1); (c) enabling the person or the person’s legal personal representative to make a submission under subsection 27A(1); the showing of the document is not taken to constitute an authorisation or approval: (d) for the purposes of the law relating to defamation or breach of confidence—of the publication of the document or its contents by the person, organisation or proprietor to whom the document is shown; and

(e) for the purposes of the law of copyright—of the doing, by the person, organisation or proprietor to whom the document is shown, of any act comprised within the copyright in: (i)

any literary, dramatic, musical or artistic work; or

(ii) any sound recording, cinematograph film, television broadcast or sound broadcast; or (iii) a published edition of a literary, dramatic, musical or artistic work; contained in the document. (3) Expressions used in paragraph (2)(b) or (2A)(e) have the same meaning as in the Copyright Act 1968. (4) For the purposes of paragraphs (1C)(a) and (2A)(a), State has the same meaning as in section 26A. [page 268]

92

Protection against criminal liability

(1) A Minister, or an officer of an agency, is not guilty of a criminal offence only because the Minister or officer: (a) publishes a document in good faith, in the belief that the publication is required or permitted under Part II (information publication scheme) or section 11C (publication of information in accessed documents); or (b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or (c) publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power). (2) A person is not guilty of a criminal offence only because the person

shows a document, or is concerned in the showing of a document, to another person or organisation for any of the following purposes: (a) consultation with a State under subsection 26A(2); (aa) consultation with the Commonwealth or a State under subsection 26AA(2); (b) enabling the other person or the organisation to make a submission under subsection 27(4); (c) enabling the other person to make a submission under subsection 27A(3). (3) For the purposes of paragraph (2)(a), State has the same meaning as in section 26A.

93

Agencies to provide information to Information Commissioner

(1) This section applies to: (a) an agency, in relation to documents of the agency; and (b) each Minister, in relation to his or her official documents. (2) The agency or Minister must give to the Information Commissioner the information that the Information Commissioner requires to prepare reports mentioned in section 30 of the Australian Information Commissioner Act 2010. (3) The agency or Minister must comply with any requirements prescribed by the regulations regarding: (a) the giving of the information; and (b) the keeping of records for the purposes of this section.

93A

Guidelines

(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act. Note:

For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.

[page 269] (2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions: (a) paragraph 9A(b) (information publication scheme); (b) subsection 11B(5) (public interest factors); (c) subsection 15(5A) (decisions on requests). (3) Guidelines are not legislative instruments.

93B

Review of operation of Act

(1) The Minister must cause a review of the operation of this Act to be undertaken. (2) The review must: (a) start 2 years after the commencement of this section; and (b) be completed within 6 months. Note:

This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010.

(3) The Minister must cause a written report about the review to be prepared. (4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

94

Regulations

(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, making

provision for or in relation to: (a) the making of charges of amounts, or at rates, fixed by or in accordance with the regulations in respect of requests for access to documents or in respect of the provision of access to documents (including the provision of copies or transcripts) in accordance with this Act, including requiring deposits on account of such charges; and (b) the officers who may give decisions on behalf of an agency. (2) Without limiting the generality of subsection (1), regulations under that subsection making provision for or in relation to the making of charges: (a) shall not be such that the amount or rate of charge varies according to whether a document is a document of one agency or of an agency included in one class of agency or is a document of another agency or of an agency included in another class of agency; (b) shall, if a charge is made for time that is spent by an agency or a Minister in undertaking any of the following activities: (i)

searching for or retrieving a document; [page 270]

(ii) making, or doing things related to making, a decision on a request for access; provide for the charge in respect of that activity to be calculated at a single hourly rate that shall be applied by the agency or Minister in respect of any request, regardless of the classification or designation of the officer who undertakes the work involved; and (d) may provide for a charge to be made that takes into account the direct costs incurred by an agency or a Minister in making available an officer to supervise the inspection by a person of any document

for which a request for access has been made under this Act. (3) Where, as a result of a request, access is given to a document in respect of which the applicant would not be entitled to access under this Act, regulations under this Act relating to charges apply as if the applicant had been given access to that document in accordance with an entitlement under this Act.

[page 271]

Schedule 1—Courts and tribunals exempt in respect of nonadministrative matters Section 6 Australian Industrial Relations Commission Australian Fair Pay Commission Industrial Registrar and Deputy Industrial Registrars

[page 272]

Schedule 2 Section 7

Part I—Exempt agencies Division 1 Aboriginal Land Councils and Land Trusts Auditor-General Australian Government Solicitor Australian Secret Intelligence Service Australian Security Intelligence Organisation Inspector-General of Intelligence and Security National Workplace Relations Consultative Council Office of National Assessments Parliamentary Budget Office Parliamentary Budget Officer

[page 273]

Division 2 Australian Geospatial-Intelligence Organisation Australian Signals Directorate Defence Intelligence Organisation

[page 274]

Part II—Agencies exempt in respect of particular documents Division 1 Attorney-General’s Department, in relation to: (a) documents in respect of commercial activities it undertakes; and (b) documents in respect of commercial activities undertaken by the Australian Government Solicitor; and (c) exempt content-service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and (d) exempt internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act. Australian Communications and Media Authority, in relation to: (a) exempt content-service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and (b) exempt internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act. Australian Broadcasting Corporation, in relation to its program material and its datacasting content Australian Postal Corporation, in relation to documents in respect of its commercial activities Australian Trade Commission, in relation to documents concerning the carrying out, in whole or in part, of overseas development projects Australian Transaction Reports and Analysis Centre, in relation to documents concerning information communicated to it under section

16 of the Financial Transaction Reports Act 1988 or section 41 or 49 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Classification Board, in relation to: (a) exempt content-service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and (b) exempt internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act. Classification Review Board, in relation to: (a) exempt content-service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and (b) exempt internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act. Comcare, in relation to documents in respect of its commercial activities Commonwealth Scientific and Industrial Research Organisation, in relation to documents in respect of its commercial activities [page 275] Department of Defence, in relation to documents in respect of: (a) the collection, reporting or analysis of operational intelligence; or (b) special access programs, under which a foreign government provides restricted access to technologies. Department of the Treasury in relation to documents in respect of activities of the Australian Loan Council and in respect of the commercial activities of the Royal Australian Mint Export Finance and Insurance Corporation, in relation to documents

concerning anything done by it under Part 4 or 5 of the Export Finance and Insurance Corporation Act 1991 Human Services Department, in relation to documents in respect of commercial activities relating to the functions of the Chief Executive Medicare Indigenous Business Australia, in relation to documents in respect of its commercial activities National Health and Medical Research Council, in relation to documents in the possession of members of the Council of the National Health and Medical Research Council who are not persons appointed or engaged under the Public Service Act 1999 NBN Co, in relation to documents in respect of its commercial activities Reserve Bank of Australia, in relation to documents in respect of its banking operations (including individual open market operations and foreign exchange dealings) and in respect of exchange control matters Special Broadcasting Service Corporation, in relation to its program material and its datacasting content

[page 276]

Division 2 Australian Statistician, in relation to documents containing information collected under the Census and Statistics Act 1905

[page 277]

Part III—Legislation relating to agencies exempt in respect of documents in relation to their commercial activities Australian Grape and Wine Authority Act 2013 Dairy Produce Act 1986 Primary Industries Research and Development Act 1989

[page 278]

Schedule 3—Secrecy provisions Section 38

Aged Care Act 1997, subsection 86-2(1) and sections 86-5, 86-6 and 86-7. Australian Institute of Health Act 1987, subsections 29(1) and (3) Australian Security Intelligence Organisation Act 1979, subsections 92(1) and (1A) Broadcasting Act 1942, paragraph 125(2)(a) Child Support (Registration and Collection) Act 1988, paragraph 16(2)(b) Child Support (Assessment) Act 1989, paragraph 150(2)(b) Civil Aviation Act 1988, subsections 32AP(1) and (2) Crimes (Taxation Offences) Act 1980, section 4 Designs Act 2003, paragraph 61(1)(a) and sections 108 and 109 Disability Services Act 1986, subsections 28(2) and (6) Epidemiological Studies (Confidentiality) Act 1981, sections 4 and 6 Gene Technology Act 2000, subsections 187(1) and (2) Health Insurance Act 1973, subsections 130(1), (4) and (9) Inspector-General of Taxation Act 2003, section 37 Inspector of Transport Security Act 2006, subsections 35(7), 36(7), 37(8), 49(2), 56(1), 56(3), 60(5), 63(3), 63(4), 63(5) and 67(1), paragraph 67(7)(a), subsections 68(2), 69(2) and 75(2), paragraph 75(8)(a) and subsection 77(9) Intelligence Services Act 2001, subsection 41(1) Migration Act 1958, section 503A as affected by section 503D of that Act

National Health Act 1953, subsections 135A(1), (4) and (9) Patents Act 1990, paragraph 56(1)(a) and subsection 173(2) Private Health Insurance Act 2007, sections 323-1 and 323-40 Taxation Administration Act 1953, sections 355-25, 355-155 and 355-265 in Schedule 1. Taxation Administration Act 1953, paragraph 8WB(1)(c) Telecommunications (Interception and Access) Act 1979, sections 63 and 133 Transport Safety Investigation Act 2003, subsections 53(1) and (2) and 60(1), (2) and (3) Defence (Inquiry) Regulations, subregulation 63(2).

[page 279]

Schedule 4—Research institutions Section 47H Commonwealth Scientific and Industrial Research Organisation The Australian National University.

[page 280]

Endnotes Endnote 1—About the endnotes The endnotes provide information about this compilation and the compiled law. The following endnotes are included in every compilation: Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2 The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history— Endnotes 3 and 4 Amending laws are annotated in the legislation history and amendment history. The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history. If a misdescribed amendment cannot be given effect as intended, the amendment is set out in the endnotes.

[page 281]

Endnote 2—Abbreviation key A = Act ad = added or inserted am = amended amdt = amendment c = clause(s) C[x] = Compilation No. x Ch = Chapter(s) def = definition(s) Dict = Dictionary disallowed = disallowed by Parliament Div = Division(s) exp = expires/expired or ceases/ceased to have effect F = Federal Register of Legislative Instruments gaz = gazette LI = Legislative Instrument LIA = Legislative Instruments Act 2003 (md) = misdescribed amendment mod = modified/modification No. = Number(s) o = order(s) Ord = Ordinance orig = original par = paragraph(s)/subparagraph(s)/sub-subparagraph(s)

pres = present prev = previous (prev…) = previously Pt = Part(s) r = regulation(s)/rule(s) Reg = Regulation/Regulations reloc = relocated renum = renumbered rep = repealed rs = repealed and substituted s = section(s)/subsection(s) Sch = Schedule(s) Sdiv = Subdivision(s) SLI = Select Legislative Instrument SR = Statutory Rules Sub-Ch = Sub-Chapter(s) SubPt = Subpart(s) underlining = whole or part not commenced or to be commenced

Endnote 3—Legislation history Act

Number and year Assent

Commencement

Application, saving and transitional provisions

Freedom of Information Act 1982 Australian Broadcasting Corporation (Transitional Provisions and

3, 1982

9 Mar 1982

7, 1983

1 June 1983

1 Dec 1982 (see Gazette 1982, No. G48, p. 2) ss. 1, 2, 15(1) and — 24: Royal Assent Remainder: 1 July 1983 (see s. 2(2) and Gazette 1983,

Consequential Amendments) Act 1983 Freedom of 81, 1983 Information Amendment Act 1983

No. S124)

3 Nov 1983

1 Jan 1984 (see Gazette 1983, No. S344)

s. 46

[page 282] Public Service Reform Act 1984

63, 1984

25 June 1984

s. 151(1): 1 July s. 151(9) 1984 (see Gazette 1984, No. S245) s. 154: 1 Jan 1986 (see Gazette 1985, No. S563) ss. 1–4, 12, 19, 32 — and 61: Royal Assent s. 34: 20 May 1985 Remainder: 6 Jan 1986 (see Gazette 1985, No. S551) 1 Feb 1987 (see s. 2 — and Gazette 1987, No. S13)

Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 Intelligence and Security (Consequential Amendments) Act 1986 Freedom of Information Laws Amendment Act 1986 Australian Airlines (Conversion to Public Company) Act 1988 Industrial Relations (Consequential Provisions) Act 1988

187, 1985

16 Dec 1985

102, 1986

17 Oct 1986

111, 1986

4 Nov 1986

18 Nov 1986

s. 20

6, 1988

9 Mar 1988

s. 69(2): 30 Apr 1988 (see Gazette 1988, No. S117)

—

87, 1988

8 Nov 1988

A.C.T. SelfGovernment

109, 1988

6 Dec 1988

ss. 1 and 2: Royal — Assent Remainder: 1 Mar 1989 (see s. 2(2) and Gazette 1989, No. S53) s. 32 (in part): 11 — May 1989 (see

(Consequential Provisions) Act 1988 Privacy Act 1988 119, 1988

14 Dec 1988

Telecommunications 121, 1988 Amendment Act 1988

14 Dec 1988

Postal Services Amendment Act 1988

14 Dec 1988

126, 1988

Gazette 1989, No. S164) 1 Jan 1989 (see s. 101(2) Gazette 1988, No. S399) ss. 5, 6, 10, 12, 13, — 23(2) and 26(1): 1 Jan 1989 (see Gazette 1988, No. S402) ss. 14, 23(3) and 26(2): 30 June 1989 (see Gazette 1989, No. S216) Remainder: 14 Dec 1988 ss. 4, 5, 9–11, 21(2) — and 22(1): 1 Jan 1989 (see Gazette 1988, No. S402) ss. 12, 21(3) and 22(2): 30 June 1989 (see Gazette 1989, No. S216) Remainder: Royal Assent

[page 283] ANL (Conversion 127, 1988 into Public Company) Act 1988 OTC (Conversion 129, 1988 into Public Company) Act 1988

14 Dec 1988

Snowy Mountains Engineering Corporation (Conversion into

19 June 1989

66, 1989

14 Dec 1988

s. 11: 1 July 1989 — (see Gazette 1989, No. S210) ss. 7(2), 8(2), 9, 11– — 22 and 25: 1 Apr 1989 (see Gazette 1989, No. S92) s. 8(1): 16 Mar 1989 (see Gazette 1989, No. S92) s. 8(3): 1 Apr 1989 Remainder: Royal Assent ss. 4, 6(1), 7(1), 8– — 10, 12, 14(2), 15 and 16: 1 July 1989 (see Gazette 1989,

Public Company) Act 1989

Aboriginal and 150, 1989 Torres Strait Islander Commission Act 1989 Federal Airports 26, 1990 Corporation Amendment Act 1990

27 Nov 1989

Defence Legislation 75, 1990 Amendment Act 1990 Commonwealth 77, 1990 Serum Laboratories (Conversion into Public Company) Act 1990 Commonwealth 118, 1990 Banks Restructuring Act 1990 Telecommunications 99, 1991 (Transitional Provisions and Consequential Amendments) Act 1991

22 Oct 1990

24 May 1990

No. S223) s. 7(2): 1 July 1989 (see Gazette 1989, No. S223) s. 14(1): 30 June 1989 Remainder: Royal Assent 5 Mar 1990 (see — Gazette 1990, No. S48) ss. 1–3: Royal — Assent s. 23(1)(a): 1 July 1990 s. 23(1) (b): 1 July 1991 s. 23(1)(c) and (2): 13 June 1986 Remainder: 1 July 1990 (see s. 2(6) and Gazette 1990, No. S154) s. 5: Royal Assent —

22 Oct 1990

s. 17: 1 Apr 1991 — (see Gazette 1991, No. S75)

28 Dec 1990

s. 62: (a)

27 June 1991

Part 5 (s. 26): 1 Feb — 1992 (see s. 2(3) and Gazette 1992, No. S32)

—

[page 284] Freedom of Information

137, 1991

27 Sept 1991

25 Oct 1991

s. 29(2)

Amendment Act 1991 Export Finance and Insurance Corporation (Transitional Provisions and Consequential Amendments) Act 1991 Special Broadcasting Service Act 1991 Sales Tax Amendment (Transitional) Act 1992 Law and Justice Legislation Amendment Act (No. 4) 1992 Law and Justice Legislation Amendment Act (No. 3) 1992 Qantas Sale Act 1992

as amended by Qantas Sale Amendment Act 1993 Qantas Sale Amendment Act 1994 Electoral and Referendum Amendment Act 1992 Prime Minister and

149, 1991

21 Oct 1991

1 Nov 1991

—

180, 1991

25 Nov 1991

s. 116: 23 Dec 1991 —

118, 1992

30 Sept 1992

28 Oct 1992

—

143, 1992

7 Dec 1992

s. 3: Royal Assent

—

165, 1992

11 Dec 1992

s. 4: Royal Assent

—

196, 1992

21 Dec 1992

Schedule (Part 1): 10 Mar 1993 (see Gazette 1993, No. GN17) Schedule (Part 5): 30 Aug 1995 (see Gazette 1995, No. S324)

s. 2(6) (am. by 60, 1993, s. 4; 168, 1994, s. 3)

60, 1993

3 Nov 1993

10 Mar 1993

—

168, 1994

16 Dec 1994

Schedule (item 17): — Royal Assent

219, 1992

24 Dec 1992

Part 4 (ss. 35, 36): Royal Assent

—

33, 1994

15 Mar 1994

ss. 11–13: Royal Assent

s. 13

Cabinet (Miscellaneous Provisions) Act 1994 Transport and 64, 1994 Communications Legislation Amendment Act 1994

30 May 1994

s. 3(3): Royal Assent

—

[page 285] Law and Justice 84, 1994 Legislation Amendment Act 1994 Employment 177, 1994 Services (Consequential Amendments) Act 1994

23 June 1994

Taxation Laws Amendment Act (No. 4) 1994]

181, 1994

19 Dec 1994

Commonwealth 161, 1995 Bank Sale Act 1995 Transport 174, 1995 Legislation Amendment Act (No. 3) 1995 Statute Law 43, 1996 Revision Act 1996

16 Dec 1995

AIDC Sale Act 1997 67, 1997

5 June 1997

Australian National 96, 1997

30 June 1997

19 Dec 1994

16 Dec 1995

25 Oct 1996

ss. 48–70 and 72– 85: Royal Assent

ss. 49, 52, 53, 56, 59, 60, 66, 67, 72, 74, 75, 78, 79, 81, 82 and 84 ss. 2(2) and 32–39: s. 9 Royal Assent ss. 9–31: 1 Jan 1995 (see s. 2(1) and Gazette 1994, No. S472) Remainder: 19 Dec 1994 (see s. 2(3)) Schedule 1 (items Sch. 5 (item 1) 22–85): 13 Oct 1994 Remainder: Royal Assent Schedule (item 52): — (b) s. 4 and Schedule — 2: 1 July 1995 Remainder: Royal Assent Schedule 5 (items — 62–64): Royal Assent Schedule 2 (item — 5): 22 Apr 2011 (see s. 2(2) and F2011L00637) Schedule 4 (item —

Railways Commission Sale Act 1997 Aged Care (Consequential Provisions) Act 1997 Judiciary Amendment Act 1999

Statute Stocktake Act 1999 Public Employment (Consequential and Transitional) Amendment Act 1999

114, 1997

7 July 1997

7, 1999

31 Mar 1999

118, 1999

22 Sept 1999

146, 1999

11 Nov 1999

3): 1 Nov 2000 (see Gazette 2000, No. S562) Schedule 5 (item — 3): (c)

Schedules 1–3: 1 Sept 1999 (see Gazette 1999, No. S395) Remainder: Royal Assent 22 Sept 1999

—

Schedule 1 (item 493): 5 Dec 1999 (see Gazette 1999, No. S584)

—

—

[page 286] Australian Security Intelligence Organisation Legislation Amendment Act 1999 A New Tax System (Indirect Tax and Consequential Amendments) Act 1999 Federal Magistrates (Consequential Amendments) Act 1999 Ministers of State and Other Legislation Amendment Act

161, 1999

10 Dec 1999

Schedule 3 (items — 1, 26–28): (d)

176, 1999

22 Dec 1999

Schedule 8 (item 15): (e)

—

194, 1999

23 Dec 1999

Schedule 15: 23 Dec 1999 (see s. 2(1))

—

1, 2000

29 Feb 2000

Schedule 4: 10 Mar — 2000 (see Gazette 2000, No. S112)

2000 Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 Gene Technology (Consequential Amendments) Act 2000 Pig Industry Act 2001 Intelligence Services (Consequential Provisions) Act 2001 Workplace Relations Legislation Amendment Act 2002 Transport Safety Investigation (Consequential Amendments) Act 2003 Inspector-General of Taxation Act 2003

108, 2000

3 Aug 2000

Schedule 3 (item — 2): 1 Jan 2001 (see Gazette 2000, No. GN50)

163, 2000

21 Dec 2000

Schedule 2 (items — 1, 2): (f)

170, 2000

21 Dec 2000

22 June 2001 (see s. — 2)

30, 2001

28 Apr 2001

153, 2001

1 Oct 2001

Schedule 1 (item — 1): (g) 29 Oct 2001 (see s. — 2)

127, 2002

11 Dec 2002

Schedule 2 (item 18): Royal Assent

19, 2003

11 Apr 2003

Schedule 1 (items — 6, 6A, 7): (h)

28, 2003

15 Apr 2003

16 Apr 2003

—

—

[page 287] Migration

75, 2003

15 July 2003

Schedule 1 (items Sch. 2 (item 4)

Legislation Amendment (Protected Information) Act 2003 Communications 114, 2003 Legislation Amendment Act (No. 1) 2003 Defence Legislation 135, 2003 Amendment Act 2003 Designs 148, 2003 (Consequential Amendments) Act 2003 Law and Justice 62, 2004 Legislation Amendment Act 2004 Administrative 38, 2005 Appeals Tribunal Amendment Act 2005 Australian 45, 2005 Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 Human Services 111, 2005 Legislation Amendment Act 2005 Telstra (Transition to 118, 2005 Full Private Ownership) Act 2005 Intelligence Services 128, 2005 Legislation Amendment Act 2005 Law and Justice 129, 2005 Legislation Amendment (Serious Drug

27 Nov 2003

17 Dec 2003

17 Dec 2003

5A–5D, 6A, 8) and Schedule 2: 16 July 2003 Remainder: Royal Assent Schedule 2: 27 Mar — 2003 Remainder: 28 Nov 2003 Schedule 2 (items — 30–32): 17 June 2004 Schedules 1 and 2: — (i) Remainder: Royal Assent

26 May 2004

Schedule 1 (items — 23–37): 27 May 2004

1 Apr 2005

Schedule 1 (items Sch. 1 (item 212) 210–217): 16 May 2005

1 Apr 2005

Schedule 1 (item 65): 1 July 2005 (see s. 2(1))

6 Sept 2005

Schedule 2 (items Sch. 2 (item 729) 90, 91, 729): 1 Oct 2005

23 Sept 2005

Schedule 1 (item — 47): 24 Nov 2006 (see s. 3(1) and F2006L03997) Schedules 1–8: 2 — Dec 2005 Remainder: Royal Assent Schedule 9 (items Sch. 9 (item 2) 1, 2): Royal Assent

4 Nov 2005

8 Nov 2005

—

Offences and Other Measures) Act 2005

Schedule 9 (items 3, 4): 9 Nov 2005

Telecommunications 40, 2006 (Interception) Amendment Act 2006

3 May 2006

Schedule 1 (item — 20): 13 June 2006 (see F2006L01623)

[page 288] National Health and Medical Research Council Amendment Act 2006 Fuel Tax (Consequential and Transitional Provisions) Act 2006 Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 Inspector of Transport Security (Consequential Provisions) Act 2006 Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006 Statute Law Revision Act 2007

50, 2006

9 June 2006

Schedule 1: 1 July — 2006 Remainder: Royal Assent

73, 2006

26 June 2006

Schedule 5 (item 153): 1 July 2006 (see s. 2(1))

101, 2006

14 Sept 2006

Schedule 5 (items Sch. 6 (items 5–11) 113–118) and Schedule 6 (items 5–11): Royal Assent

150, 2006

7 Dec 2006

Schedule 1: 7 June — 2007 (see s. 2(1)) Remainder: Royal Assent

170, 2006

12 Dec 2006

Schedule 1 (item — 148): 13 Dec 2006 (see s. 2(1))

8, 2007

15 Mar 2007

Schedule 3 (items — 23, 24): Royal Assent

—

Classification (Publications, Films and Computer Games) Amendment Act 2007 Private Health Insurance (Transitional Provisions and Consequential Amendments) Act 2007 Tax Laws Amendment (2007 Measures No. 1) Act 2007 Communications Legislation Amendment (Content Services) Act 2007 Quarantine Amendment (Commission of Inquiry) Act 2007 Wheat Export Marketing (Repeal and Consequential Amendments) Act 2008

27, 2007

15 Mar 2007

Schedule 1 (items Sch. 1 (item 22) 14, 15, 22): 1 July 2007 (see F2007L01781)

32, 2007

30 Mar 2007

Schedule 2 (item — 12): 1 Apr 2007 (see s. 2(1))

56, 2007

12 Apr 2007

12 Apr 2007

124, 2007

20 July 2007

Schedule 1 (items — 89–94): 20 Jan 2008

158, 2007

24 Sept 2007

24 Sept 2007

—

66, 2008

30 June 2008

Schedule 2 (item 11): 1 July 2008 (see s. 2(1))

—

Sch. 1 (item 5)

[page 289] Archives Amendment Act 2008 Freedom of Information (Removal of Conclusive Certificates and

113, 2008

31 Oct 2008

1 Nov 2008

—

99, 2009

6 Oct 2009

Schedule 1: 7 Oct 2009

Sch. 1 (items 34, 35)

Other Measures) Act 2009 Offshore 102, 2009 Petroleum and Greenhouse Gas Storage Legislation Amendment Act 2009 Statute Law 8, 2010 Revision Act 2010

Freedom of Information Amendment (Reform) Act 2010

as amended by Statute Law Revision Act 2012 Territories Law Reform Act 2010

as amended by Statute Law Revision Act 2012

8 Oct 2009

Schedule 1 (items — 62J–62L): 9 Oct 2009

1 Mar 2010

Schedule 5 (items 58, 59): Royal Assent Schedule 5 (item 137(a), (c)): (j) Schedule 1, Schedule 3 (items 7–14, 16–34, 39), Schedule 4 (items 1–57, 65), Schedule 6 (items 1–41) and Schedule 7: (k) Schedule 2 and Schedule 3 (item 15): 1 May 2011

51, 2010

31 May 2010

136, 2012

22 Sept 2012

139, 2010

10 Dec 2010

136, 2012

22 Sept 2012

—

Sch. 2 (item 4), Sch. 3 (item 39) and Sch. 6 (item 40) Sch. 4 (item 65) (am. by 136, 2012, Sch. 2 [item 17]) Sch. 6 (item 41) (am. by 136, 2012, Sch. 2 [item 18]) Sch. 7

Schedule 2 (items — 16–18): (ka) Schedule 2 (item 42): (ka) Schedule 1 (item — 66): 11 Dec 2010 Schedule 1 (items 155–175, 183–239): 1 Jan 2011 Schedule 1 (items 176–182): (l) Schedule 2 (item — 42): (see 136, 2012 above)

[page 290] Tax Laws

145, 2010

16 Dec 2010

Schedule 2 (items Sch. 2 (item 123(3))

Amendment (Confidentiality of Taxpayer Information) Act 2010 Financial Framework 148, 2010 Legislation Amendment Act 2010 Screen Australia 20, 2011 (Transfer of Assets) Act 2011 Telecommunications 23, 2011 Legislation Amendment (National Broadband Network Measures— Access Arrangements) Act 2011 Human Services 32, 2011 Legislation Amendment Act 2011 Acts Interpretation 46, 2011 Amendment Act 2011

22–28, 123(3)): 17 Dec 2010

17 Dec 2010

Schedule 4 (item 12): 18 Dec 2010

12 Apr 2011

Schedule 1 (items — 1, 2): 1 July 2011

12 Apr 2011

Schedule 1 (items — 115–122): 11 June 2011

25 May 2011

Schedule 4 (items Sch. 4 (item 113) 108–113): 1 July 2011

27 June 2011

Schedule 2 (item Sch. 3 (items 10, 635) and Schedule 11) 3 (items 10, 11): 27 Dec 2011 Schedule 3 (items — 1–3): 15 Feb 2012 (see F2012L00277)

Parliamentary 170, 2011 Service Amendment (Parliamentary Budget Officer) Act 2011 Statute Law Revision 136, 2012 Act 2012

4 Dec 2011

Freedom of 177, 2012 Information Amendment (Parliamentary Budget Office) Act 2012 Courts Legislation 187, 2012 Amendment (Judicial Complaints) Act 2012

4 Dec 2012

22 Sept 2012

11 Dec 2012

—

Schedule 1 (items — 57–59): Royal Assent Schedule 1 (items Sch. 1 (item 12) 1–12): Royal Assent

Schedule 1 (items — 34, 35): 12 Apr 2013 (see F2013L00645)

Privacy Amendment 197, 2012 (Enhancing Privacy Protection) Act 2012 Federal Circuit Court 13, 2013 of Australia (Consequential Amendments) Act 2013

12 Dec 2012

Schedule 5 (item 36): 12 Mar 2014

—

14 Mar 2013

Schedule 1 (item — 318): 12 Apr 2013 (see s. 2(1)) Schedule 2 (item 2): (m) Schedule 3 (items 81, 82): (m)

[page 291] Royal Commissions 24, 2013 Amendment Act 2013 Grape and Wine 136, 2013 Legislation Amendment (Australian Grape and Wine Authority) Act 2013 Rural Research and 146, 2013 Development Legislation Amendment Act 2013 Public Governance, 62, 2014 Performance and Accountability (Consequential and Transitional Provisions) Act 2014 National Security 108, 2014 Legislation Amendment Act (No. 1) 2014 Albury-Wodonga 117, 2014 Development Corporation

28 Mar 2013

Schedule 1 (item 1A): Royal Assent

—

13 Dec 2013

Sch 1 (item 14): 1 July 2014 (s 2(1) item 3)

—

13 Dec 2013

Sch 2 (item 3): 13 Dec 2013 (s 2(1) item 2)

—

30 June 2014

Sch 9 (item 90) and Sch 14 (items 1–4) Sch 14 (items 1–4): 1 July 2014 (s 2(1) items 6, 14)

2 Oct 2014

Sch 7 (items 103– 110, 144, 145): 3 Oct 2014 (s 2(1) items 3, 5) Sch 1 (items 2, 825): 1 Jan 2015 (s 2(1) item 2 and

11 Nov 2014

Sch 7 (items 144, 145)

Sch 1 (items 8-25)

(Abolition) Act 2014

F2014L01614)

Number and year FRLI registration Commencement Application, or gazettal saving and transitional provisions 2006 No. 50 17 Mar 2006 (see Schedule 36: 27 — F2006L00820) Mar 2006 (see r. 2(b)) (a) The Freedom of Information Act 1982 was amended by section 62 only of the Commonwealth Banks Restructuring Act 1990, subsection 2(3) of which provides as follows: (3) Each of the remaining provisions of this Act commences on a day, or at a time, fixed by Proclamation in relation to the provision concerned. In pursuance of section 62 (in so far as it relates to the Freedom of Information Act 1982), the date fixed for commencement was immediately after 17 April 1991 (see Gazette 1991, No. S72). [page 292] (b) The Freedom of Information Act 1982 was amended by the Schedule (item 52) only of the Commonwealth Bank Sale Act 1995, subsection 2(2) of which provides as follows: (2) Part 3, and all the items of the Schedule (except items 1, 12, 16, 17, 21, 22, 23, 26, 27, 31, 37 and 48), commence at the transfer time. The transfer time occurred on 19 July 1996. (c) The Freedom of Information Act 1982 was amended by Schedule 5 (item 3) only of the Aged Care (Consequential Provisions) Act 1997, subsection

2(1) of which provides as follows: (1) Subject to this section, this Act commences immediately after the commencement of the Aged Care Act 1997 (other than Division 1 of that Act). The Aged Care Act 1997 (other than Division 1) commenced on 1 October 1997. (d) The Freedom of Information Act 1982 was amended by Schedule 3 (items 1, 26–28) only of the Australian Security Intelligence Organisation Legislation Amendment Act 1999, subsections 2(1) and (2) of which provide as follows: (1) This Act (other than Schedule 3) commences on the day on which it receives the Royal Assent. (2) Subject to subsections (3) to (6), Schedule 3 commences immediately after the commencement of the other Schedules to this Act. (e) The Freedom of Information Act 1982 was amended by Schedule 8 (item 15) only of the A New Tax System (Indirect Tax and Consequential Amendments) Act 1999, subsection 2(17) of which provides as follows: (17) Schedule 8 commences immediately after the commencement of the A New Tax System (Goods and Services Tax) Act 1999. The A New Tax System (Goods and Services Tax) Act 1999 came into operation on 1 July 2000. (f)

The Freedom of Information Act 1982 was amended by Schedule 2 (items 1 and 2) only of the Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000, subsection 2(2) of which provides as follows: (2) Schedules 1 (repeals) and 2 (consequential amendments) commence on the transfer day, immediately after the transfer of assets, liabilities and staff under Part 2. Note:

See sections 12 and 13 for the transfer day, and the time at which the

transfer occurs.

The transfer day was 1 February 2001 (see Gazette 2001, No. GN6). (g) The Freedom of Information Act 1982 was amended by Schedule 1 (item 1) only of the Pig Industry Act 2001, subsection 2(2) of which provides as follows: (2) Schedule 1 (other than item 3) commences immediately after the transfer time. Note:

Transfer time is defined in section 7.

The transfer time was the beginning of 1 July 2001 (see Gazette 2001, No. S269). (h) Subsection 2(1) (item 2) of the Transport Safety Investigation (Consequential Amendments) Act 2003 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. [page 293] Commencement information Column 1 Column 2 Provision(s) Commencement 2. Schedule 1 Immediately after the commencement of section 3 of the Transport Safety Investigation Act 2003

(i)

Column 3 Date/Details 1 July 2003 (see Gazette 2003, No. S229)

Subsection 2(1) (item 2) of the Designs (Consequential Amendments) Act 2003 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Provision(s)

Commencement

Date/Details

2. Schedules 1 and 2

(j)

Immediately after the commencement of section 4 of the Designs Act 2003.

17 June 2004

Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Provision(s) 31. Schedule 5, items 1 to 51 38. Schedule 5, Parts 2 and 3

Commencement The day this Act receives the Royal Assent. Immediately after the provision(s) covered by table item 31.

Date/Details 1 March 2010 1 March 2010

(k) Subsection 2(1) (items 2, 4, 6 and 7) of the Freedom of Information Amendment (Reform) Act 2010 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Provision(s) 2. Schedule 1

Commencement Date/Details Immediately after the 1 November 2010 commencement of section 3 of the Australian Information Commissioner Act 2010. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all.

[page 294] 4. Schedule 3, items 1 Immediately after the to 14 commencement of section 3 of the

1 November 2010

Australian Information Commissioner Act 2010. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 6. Schedule 3, items 16 Immediately after the 1 November 2010 to 40 commencement of section 3 of the Australian Information Commissioner Act 2010.

7. Schedules 4 to 7

However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. Immediately after the 1 November 2010 commencement of section 3 of the Australian Information Commissioner Act 2010. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all.

(ka) Subsection 2(1) (items 16, 17 and 32) of the Statute Law Revision Act 2012 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Provision(s) 16. Schedule 2, item 16

17. Schedule 2, items 17 and 18

Commencement Date/Details Immediately after the time specified 1 November 2010 in the Freedom of Information Amendment (Reform) Act 2010 for the commencement of item 23 of Schedule 3 to that Act. Immediately after the time specified 1 November 2010 in the Freedom of Information Amendment (Reform) Act 2010 for the commencement of Schedule 4 to that Act.

32. Schedule 2, item 42

(l)

Immediately after the time specified 1 January 2011 in the Territories Law Reform Act 2010 for the commencement of item 210 of Schedule 1 to that Act.

Subsection 2(1) (item 7) of the Territories Law Reform Act 2010 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Provision(s) 7. Schedule 1, items 176 to 182

Commencement Date/Details Immediately after the 1 May 2011 commencement of item 3 of Schedule 2 to the Freedom of Information Amendment (Reform) Act 2010.

[page 295] (m) Subsection 2(1) (item 2, 3 and 15) of the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Provision(s) 2. Schedule 1

3. Schedule 2

15. Schedule 3, Part 4

Commencement At the same time as item 1 of Schedule 1 to the Federal Circuit Court of Australia Legislation Amendment Act 2012 commences. Immediately after the commencement of the provision(s) covered by table item 2. The later of: (a) immediately after the

Date/Details 12 April 2013

12 April 2013

12 April 2013 (paragraph (b) applies)

commencement of the provision(s) covered by table item 2; and (b) immediately after the commencement of Schedule 1 to the Courts Legislation Amendment (Judicial Complaints) Act 2012. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

Endnote 4—Amendment history Provision affected Part I s. 3 .........................................

s. 3A ....................................... s. 4 .........................................

s. 4A ........................................ s. 4B ......................................... Subhead. to s. 5(1) .............. Subhead. to s. 5(1C) ............ Subhead. to s. 5(2) .............. s. 5 ...........................................

How affected

am. No. 137, 1991 rs. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 am. No. 81, 1983; No. 63, 1984; No. 111, 1986; No. 109, 1988; No. 137, 1991; No. 196, 1992; Nos. 33, 84 and 177, 1994; No. 43, 1996; No. 1, 2000; Nos. 114 and 135, 2003; No. 62, 2004; No. 128, 2005; Nos. 124 and 158, 2007; No. 113, 2008; Nos. 99 and 102, 2009; Nos. 8, 51 and 139, 2010; Nos. 23, 32 and 170, 2011; No 197, 2012; No 108, 2014 ad. No. 109, 1988 ad. No. 139, 2010 ad. No. 187, 2012 rs. No. 13, 2013 ad. No. 187, 2012 am. No. 43, 1996; No. 139, 2010; No. 187, 2012; No. 13, 2013

[page 296] s. 6 ......................................... s. 6A ...................................... s. 6B ......................................

am. No. 43, 1996 ad. No. 63, 1984 am. No. 43, 1996 ad. No. 177, 1994 rep. No. 51, 2010

s. 6C ....................................... s. 7 .........................................

ad. No. 51, 2010 am. No. 81, 1983; No. 102, 1986; No. 75, 1990; No. 137, 1991; No. 165, 1992; No. 84, 1994; No. 161, 1999; No. 128, 2005; No. 99, 2009; No. 51, 2010; No. 23, 2011; No. 24, 2013; No 108, 2014

Part II Part II .......................................

rs. No. 51, 2010

Division 1 s. 7A .........................................

ad. No. 51, 2010

Division 2 s. 8 ...........................................

ss. 8A, 8B ................................ s. 8C ......................................... ss. 8D, 8E ................................. Division 3 s. 8F ......................................... s. 9 ........................................... Division 4 s. 9A ......................................... Division 5 s. 10 ......................................... s. 10A ....................................... s. 10B ....................................... Part III s. 11 .......................................... s. 11A ....................................... s. 11B .......................................

am. No. 111, 1986; No. 84, 1994 rs. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010

ad. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 137, 1991; No. 43, 1996 rs. No. 51, 2010

ad. No. 51, 2010

am. No. 81, 1983; No. 137, 1991; No. 43, 1996 rs. No. 51, 2010 ad. No. 51, 2010 ad. No. 139, 2010

am. No. 137, 1991 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010

[page 297]

s. 11C ....................................... s. 12 ......................................... s. 13 ......................................... s. 14 ......................................... Subheads. to s. 15(1), (2) .... Subhead. to s. 15(3) ............ Subhead. to s. 15(5) ............ Subhead. to s. 15(6) ............ s. 15 ......................................... Note to s. 15(3) ..................... ss. 15AA–15AC ...................... s. 15A ....................................... s. 16 ......................................... s. 17 ......................................... s. 18 ......................................... s. 19 ......................................... s. 20 ......................................... s. 21 ......................................... s. 22 ......................................... s. 23 ......................................... s. 24 ......................................... ss. 24AA, 24AB .................... s. 24A ...................................... s. 25 ......................................... s. 26 ......................................... Heading to s. 26A ............... s. 26A ......................................

ad. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 165, 1992; No. 43, 1996; No. 99, 2009; Nos. 51 and 139, 2010 am. No. 81, 1983; No. 158, 2007; No. 113, 2008; No. 102, 2009; No. 51, 2010; No. 20, 2011 rep. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 am. No. 111, 1986; No. 137, 1991; Nos. 51 and 139, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 137, 1991 am. No. 81, 1983; No. 137, 1991; No. 165, 1992; No. 128, 2005 am. No. 111, 1986; No. 137, 1991; No. 51, 2010 am. No. 111, 1986 rep. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 119, 1988 rep. No. 137, 1991 am. No. 43, 1996; No. 139, 2010 am. Nos. 51 and 139, 2010 am. No. 137, 1991; No. 43, 1996 rs. No. 51, 2010 am. No. 81, 1983; No. 43, 1996 rs. No. 137, 1991; No. 51, 2010 ad. No. 51, 2010 ad. No. 137, 1991 rs. No. 51, 2010 am. No. 81, 1983; No. 51, 2010; No. 177, 2012 am. No. 81, 1983; No. 43, 1996; No. 51, 2010 am. No. 139, 2010 ad. No. 81, 1983 am. No. 137, 1991 rs. No. 51, 2010 am. No. 139, 2010

[page 298]

s. 26AA ..................................... s. 27 ........................................... s. 27A ........................................

s. 28 .......................................... s. 29 ..........................................

s. 30 .......................................... s. 30A ........................................

s. 31 ..........................................

ad. No. 139, 2010 am. No. 137, 1991 rs. No. 51, 2010 ad. No. 119, 1988 am. No. 137, 1991; No. 84, 1994 rs. No. 51, 2010 am. No. 43, 1996 rep. No. 51, 2010 am. No. 111, 1986 rs. No. 137, 1991 am. No. 84, 1994; No. 51, 2010 am. No. 111, 1986 rep. No. 137, 1991 ad. No. 111, 1986 am. No. 137, 1991; No. 84, 1994 rep. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 43, 1996 rs. No. 51, 2010

Part IV Division 1 Heading to Div. 1 of ............. Part IV ss. 31A, 31B ............................ s. 32 .......................................... Division 2 Heading to Div. 2 of ............. Part IV s. 33 ......................................... Note to s. 33 ........................ s. 33A ......................................

s. 34 ......................................... s. 35 .........................................

ad. No. 51, 2010 ad. No. 51, 2010 am. No. 51, 2010 (as am. by No. 136, 2012)

ad. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 43, 1996; No. 99, 2009 ad. No. 51, 2010 ad. No. 81, 1983 am. No. 137, 1991; No. 43, 1996; No. 99, 2009 rep. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 99, 2009 rs. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 99, 2009 rep. No. 51, 2010

[page 299]

s. 36 ......................................... s. 36A ...................................... s. 37 ......................................... s. 38 ......................................... ss. 39, 40 ............................... s. 41 ......................................... s. 42 ......................................... s. 43 ......................................... s. 43A ...................................... s. 44 ......................................... s. 45 ......................................... s. 45A ....................................... s. 47 .........................................

s. 47A ....................................... Division 3 Div. 3 of Part IV .................... Heading to s. 47B ............... ss. 47B, 47C ........................... Heading to s. 47D ............... ss. 47D, 47E .......................... s. 47F ......................................... s. 47G ......................................... s. 47H .........................................

am. No. 43, 1996; No. 99, 2009 rep. No. 51, 2010 ad. No. 137, 1991 rep. No. 99, 2009 am. No. 81, 1983; No. 137, 1991; No. 84, 1994 am. No. 119, 1988; No. 137, 1991; No. 75, 2003; No. 139, 2010 rs. No. 81, 1983 rep. No. 51, 2010 am. No. 137, 1991 rep. No. 51, 2010 am. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 43, 1996 rep. No. 51, 2010 ad. No. 137, 1991 rep. No. 51, 2010 rep. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 137, 1991; No. 43, 1996; No. 62, 2004; Nos. 51 and 139, 2010 ad. No. 177, 2012 am. No. 81, 1983; No. 143, 1992 rs. No. 51, 2010 am. No. 139, 2010 ad. No. 219, 1992 am. No. 139, 2010

ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 am. No. 139, 2010 am. No. 139, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010

[page 300] s. 47J .........................................

ad. No. 51, 2010

Note to s. 47J(1) .................... Part V Part V ...................................... s. 48 ......................................... s. 49 ......................................... s. 50 ......................................... s. 51 ......................................... ss. 51A, 51B ........................... s. 51C ....................................... s. 51D ......................................... s. 51DA ...................................... s. 51E ......................................... Part VA ...................................... Part VI Heading to Part VI ................. s. 52 ............................................ ss. 52A–52F ............................ s. 53 .........................................

s. 53A ......................................... s. 53B ......................................... Note to s. 53B .......................... s. 53C .........................................

am. No. 139, 2010 am. No. 46, 2011

rs. No. 137, 1991 am. No. 119, 1988 rs. No. 137, 1991 am. No. 81, 1983 rs. No. 137, 1991 rs. No. 137, 1991 am. No. 81, 1983 rs. No. 137, 1991 ad. No. 137, 1991 ad. No. 137, 1991 am. No. 165, 1992; No. 128, 2005 ad. No. 137, 1991 ad. No. 51, 2010 ad. No. 137, 1991 ad. No. 81, 1983 rep. No. 137, 1991

rs. No. 51, 2010 rep. No. 137, 1991 ad. No. 51, 2010 ad. No. 81, 1983 rep. No. 137, 1991 am. No. 81, 1983 rs. No. 99, 2009 am. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 am. No. 139, 2010 ad. No. 51, 2010 am. No. 139, 2010; No. 136, 2012

[page 301] s. 54 ......................................... ss. 54A–54E .............................

am. No. 81, 1983; No. 111, 1986; No. 137, 1991; No. 84, 1994 rs. No. 51, 2010 ad. No. 51, 2010

Part VII Part VII .........................................

rep. No. 81, 1983 ad. No. 51, 2010

Division 1 s. 54F .........................................

ad. No. 51, 2010

Division 2 ss. 54G, 54H ............................. ss. 54J, 54K .............................

ad. No. 51, 2010 ad. No. 51, 2010

Division 3 ss. 54L, 54M .............................

ad. No. 51, 2010

Division 4 Subdivision A s. 54N ......................................... s. 54P ......................................... ss. 54Q, 54R ............................. Subdivision B s. 54S .........................................

ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010

s. 54T .........................................

ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010

Division 5 s. 54U ......................................... s. 54V ......................................... s. 54W ......................................... s. 54X ......................................... s. 54Y ......................................... Note to s. 54Y(2) ....................

ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010; No. 136, 2012

Division 6 s. 54Z ......................................... s. 55 .........................................

ss. 55A–55D ............................... s. 55DA .........................................

ad. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 137, 1991; No. 84, 1994; No. 43, 1996 rs. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010

[page 302]

s. 55E ......................................... s. 55F ......................................... s. 55G ......................................... Note to s. 55G(1) ................... s. 55H ......................................... s. 55J ......................................... Division 7 ss. 55K, 55L ............................... s. 55M ......................................... s. 55N ......................................... ss. 55P, 55Q ................................ Division 8 s. 55R ......................................... s. 55S ......................................... s. 55T ......................................... Note to s. 55T(1) ................... Heading to s. 55U ................. s. 55U .........................................

ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010; No. 136, 2012 ad. No. 51, 2010 ad. No. 51, 2010

ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 ad. No. 51, 2010

s. 55V ......................................... s. 55W ......................................... s. 55X ......................................... s. 55Y ......................................... s. 55Z .........................................

ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 177, 2012 rs. No. 177, 2012 ad. No. 51, 2010 am. No. 177, 2012 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010

Division 9 ss. 55ZA–55ZD .....................

ad. No. 51, 2010

Division 10 s. 56 ......................................... s. 56A .........................................

am. No. 81, 1983; No. 137, 1991; No. 143, 1992; No. 43, 1996 rs. No. 51, 2010 ad. No. 51, 2010

Part VIIA Heading to Part VIIA .............

ad. No. 51, 2010

Division 1 Heading to Div. 1 of .............. Part VIIA

ad. No. 51, 2010

[page 303] s. 57 .........................................

Division 2 Heading to Div. 2 of ............... Part VIIA s. 57A ......................................... Division 3 Heading to Div. 3 of ............... Part VIIA s. 58 ............................................ s. 58A .........................................

s. 58AA ...................................... Division 4 Heading to Div. 4 of ............... Part VIIA Heading to s. 58B .................... s. 58B ......................................... s. 58C .........................................

s. 58D ......................................... s. 58E .........................................

s. 58F .........................................

s. 59 .........................................

rep. No. 81, 1983 ad. No. 137, 1991 rs. No. 51, 2010

ad. No. 51, 2010 ad. No. 51, 2010

ad. No. 51, 2010 am. No. 81, 1983; No. 143, 1992; No. 99, 2009; No. 51, 2010 ad. No. 81, 1983 am. No. 137, 1991; No. 165, 1992; No. 43, 1996 rep. No. 99, 2009 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010

ad. No. 51, 2010 rs. No. 99, 2009 ad. No. 81, 1983 am. No. 43, 1996; No. 99, 2009; No. 51, 2010; No. 177, 2012 ad. No. 81, 1983 am. No. 143, 1992; No. 43, 1996 rep. No. 99, 2009 ad. No. 81, 1983 am. No. 38, 2005; No. 51, 2010 ad. No. 81, 1983 am. No. 43, 1996 rs. No. 99, 2009 am. No. 177, 2012 ad. No. 81, 1983 am. No. 137, 1991; No. 84, 1994 rep. No. 51, 2010 am. No. 137, 1991; No. 84, 1994; No. 99, 2009 rep. No. 51, 2010

[page 304] s. 59A .........................................

s. 60 ........................................... s. 60AA ...................................... s. 60AB ...................................... s. 60A ......................................... s. 61 .........................................

s. 61A ....................................... s. 62 ......................................... Division 5 Heading to Div. 5 of ............. Part VIIA s. 63 ......................................... s. 64 ......................................... Note to s. 64(2) ..................... s. 65 ......................................... Division 6 Heading to Div. 6 of ............ Part VIIA s. 66 ......................................... Division 7 Heading to Div. 7 of ............. Part VIIA s. 67 .........................................

Part VIIB Part VIIB .....................................

ad. No. 119, 1988 am. No. 137, 1991; No. 84, 1994; No. 99, 2009 rep. No. 51, 2010 am. No. 81, 1983; No. 99, 2009 rs. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 ad. No. 99, 2009 am. No. 137, 1991 rs. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010 am. No. 81, 1983

ad. No. 51, 2010 am. No. 81, 1983; No. 43, 1996; No. 99, 2009 am. No. 81, 1983; No. 137, 1991; No. 43, 1996; No. 194, 1999; No. 38, 2005; No. 99, 2009; No. 13, 2013 am. No. 177, 2012 am. No. 81, 1983 rep. No. 99, 2009

ad. No. 51, 2010 rs. No. 81, 1983 am. No. 43, 1996; Nos. 51 and 139, 2010

ad. No. 51, 2010 rep. No. 81, 1983 ad. No. 99, 2009 am. No. 51, 2010; No. 13, 2013

ad. No. 51, 2010

[page 305]

Division 1 s. 68 .........................................

rep. No. 81, 1983 ad. No. 51, 2010

Division 2 Subdivision A s. 69 ......................................... Subdivision B s. 70 ......................................... Subdivision C ss. 71–73 ................................... s. 74 .........................................

s. 75 ......................................... Subdivision D ss. 76–85 .................................... Subdivision E ss. 86–89 ................................... ss. 89A–89C ............................... s. 89D ......................................... s. 89E ......................................... Division 3 ss. 89F–89H .............................. s. 89J ......................................... Part VIII Division 1

rep. No. 81, 1983 ad. No. 51, 2010

rep. No. 81, 1983 ad. No. 51, 2010

rep. No. 81, 1983 ad. No. 51, 2010 rep. No. 81, 1983 ad. No. 51, 2010 am. No. 139, 2010 rep. No. 81, 1983 ad. No. 51, 2010

rep. No. 81, 1983 ad. No. 51, 2010

rep. No. 81, 1983 ad. No. 51, 2010 ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010 ad. No. 51, 2010

ad. No. 51, 2010 ad. No. 51, 2010 am. No. 139, 2010

Div. 1 of Part VIII ..................... ss. 89K–89N ..............................

ad. No. 51, 2010 ad. No. 51, 2010

[page 306]

Division 2 Heading to Div. 2 of .............. Part VIII s. 89P ......................................... s. 90 .........................................

ad. No. 51, 2010

ss. 93A, 93B ............................. s. 94 .........................................

ad. No. 51, 2010 rep. No. 81, 1983 ad. No. 51, 2010 am. No. 139, 2010 rs. No. 51, 2010 am. No. 81, 1983; No. 137, 1991; No. 84, 1994; Nos. 51 and 139, 2010 am. No. 81, 1983; No. 84, 1994 rs. No. 51, 2010 am. No. 139, 2010 ad. No. 84, 1994 rep. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 137, 1991; No. 43, 1996 rs. No. 51, 2010 am No 62, 2014 ad. No. 51, 2010 am. No. 81, 1983; No. 111, 1986; No. 51, 2010

Schedule 1 Schedule 1 .............................

am. No. 87, 1988; No. 62, 2004; SLI 2006 No. 50

Heading to s. 91 .................... s. 91 ......................................... s. 92 .........................................

s. 92A ......................................... s. 93 .........................................

Schedule 2 Schedule 2 .............................

Schedule 3

am. No. 7, 1983; No. 187, 1985; Nos. 102 and 111, 1986; Nos. 6, 121, 126, 127 and 129, 1988; Nos. 66 and 150, 1989; Nos. 26, 75 and 118, 1990; Nos. 99, 137, 149 and 180, 1991; No. 165, 1992; Nos. 64 and 84, 1994; No. 161, 1995; Nos. 67 and 96, 1997; Nos. 7, 146 and 161, 1999; Nos. 108 and 163, 2000; No. 30, 2001; No. 127, 2002; No. 114, 2003; No. 62, 2004; Nos. 45, 111, 118, 128 and 129, 2005; Nos. 50 and 170, 2006; Nos. 27 and 124, 2007; No. 66, 2008; Nos. 8, 51 and 148, 2010; Nos. 23, 32 and 170, 2011; No 136 and 146, 2013; No 108 2014; No 117, 2014

Schedule 3 .............................

Schedule 4 Schedule 4 .............................

ad. No. 137, 1991 am. No. 118, 1992; No. 181, 1994; No. 174, 1995; No. 114, 1997; Nos. 118, 161 and 176, 1999; No. 170, 2000; No. 153, 2001; Nos. 19, 28, 75 and 148, 2003; No. 62, 2004; Nos. 40, 73, 101 and 150, 2006; Nos. 8, 32 and 56, 2007; No. 145, 2010

ad. No. 137, 1991 am. No. 84, 1994; No. 51, 2010

[page 307]

Part 4 Freedom of Information Guidelines: Part 5 Exemptions

[page 309]

Contents Introduction …. Documents exempt under Part IV …. Commonly used terms …. Substantial adverse effect…. Prejudice…. Documents affecting national security, defence or international relations (s 33) …. Reasonably expected…. Damage…. Security of the Commonwealth…. Defence of the Commonwealth…. International relations…. The mosaic theory…. Information communicated in confidence…. Extended processing period for consultation…. Refusal to confirm or deny existence of a document…. Evidence from Inspector-General of Intelligence and Security…. Cabinet documents (s 34) …. Documents included in exemption…. Documents excluded from exemption…. Documents created for submission to Cabinet…. Official record of the Cabinet…. Cabinet briefings…. Draft Cabinet documents….

Copies and extracts…. Documents disclosing a deliberation or decision of Cabinet…. Purely factual material…. ‘Officially disclosed’…. Documents affecting law enforcement and public safety (s 37) …. Reasonable expectation …. Investigation of a breach of law …. Disclosure of a confidential source …. Scope of confidentiality …. Enforcement or administration of the law …. Disclosure of identity …. Endanger the life or physical safety of any person…. Prejudice to a fair or impartial trial …. Prejudice to law enforcement methods and procedures …. [page 310] Protection of public safety …. Withholding information about the existence of documents …. Documents to which secrecy provisions apply (s 38) …. Documents subject to legal professional privilege (s 42) …. Elements of legal professional privilege …. Legal adviser-client relationship, independence and government lawyers …. For the purpose of giving or receiving legal advice, or use in actual or anticipated litigation …. Confidentiality …. Waiver of privilege …. The ‘real harm’ test ….

Copies or summary records …. Exception for operational information …. Severance …. Documents containing material obtained in confidence (s 45) …. Breach of confidence …. Specifically identified …. Quality of confidentiality …. Mutual understanding of confidence …. Unauthorised disclosure or threatened disclosure …. Detriment …. Absence of public policy defence …. A document to which s 47C(1) applies …. Parliamentary Budget Office documents (s 45A) …. Documents included in exemption …. Documents excluded from exemption …. Withholding information about the existence of documents …. Documents whose disclosure would be in contempt of the Parliament or in contempt of court (s 46) …. Apart from this Act …. Contempt of court…. Contrary to an order or direction …. Infringe the privileges of Parliament …. Documents disclosing trade secrets or commercially valuable information (s 47) …. Trade secrets…. Information having a commercial value …. Consultation…. Electoral rolls and related documents (s 47A) ….

[page 311]

Part 5 — Exemptions

Introduction 5.1 Where an informal request for a document has been made and any required charges have been paid, an agency or minister must give access to the document unless the document at that time is an exempt document (s 11A). An exempt document is: (a) a document of an agency which is exempt from the operation of the Act in whole or in part (see Part 2 of these Guidelines) (b) an official document of a minister that contains some matter not relating to the affairs of an agency or a Department of State (see Part 2 of these Guidelines), or (c) exempt for the purposes of Part IV of the FOI Act — that is, it meets the criteria for an exemption provision (s 4(1)). 5.2 An agency or minister can withhold access to a document under Part IV only if the document is exempt at the time the access request is determined. A document that was exempt at one point in time may not necessarily be exempt at a later time because circumstances have changed. 5.3 A ‘document’ includes any part of a document that is relevant to the terms of the FOI request. Consequently, a decision maker should consider whether it is practicable to delete exempt material and provide the balance to the applicant. If it is practicable to delete the exempt material and retain a

copy of a meaningful non-exempt edited copy to provide to the applicant, an agency or minister must do so (s 22). 5.4 The decision maker must provide a statement of reasons under s 26 if any aspect of an FOI request is refused or if access is deferred (see Part 8 of these Guidelines).

Documents exempt under Part IV 5.5 Exempt documents under Part IV of the FOI Act fall into two categories: exempt under Division 2 conditionally exempt under Division 3, where access to the document must be given unless disclosure would, on balance, be contrary to the public interest (s 11A(5)). 5.6

Exempt documents in Division 2 of Part IV are: documents affecting national security, defence or international relations (s 33) Cabinet documents (s 34) documents affecting enforcement of law and protection of public safety (s 37) documents to which secrecy provisions of enactments apply (s 38) documents subject to legal professional privilege (s 42) documents containing material obtained in confidence (s 45) [page 312] Parliamentary Budget Office documents (s 45A) documents disclosure of which would be contempt of Parliament or

contempt of court (s 46) documents disclosing trade secrets or information (s 47) electoral rolls and related documents (s 47A).

commercially

valuable

5.7 The exemptions in Division 2 of Part IV are not subject to an overriding public interest test. If a document meets the criteria to establish a particular exemption, it is exempt. There is no additional obligation to weigh competing public interests to determine if the document should be released. However, agencies and ministers can always provide access to a document where the law permits, even if the document is exempt (s 3A). The Information Commissioner encourages agencies and ministers to consider in each case whether an exempt document can be released without causing significant harm and to allow access to documents wherever possible. 5.8 Documents which are conditionally exempt under Division 3 relate to the following categories: Commonwealth-State relations (s 47B) deliberative processes (s 47C) financial or property interests of the Commonwealth (s 47D) certain operations of agencies (s 47E) personal privacy (s 47F) business (other than documents to which s 47 applies) (s 47G) research (s 47H) the economy (s 47J). 5.9 Where a document is assessed as conditionally exempt, the agency or minister must give access to it unless in the circumstances access would, on balance, be contrary to the public interest (s 11A(5)). The public interest test is weighted in favour of giving access to documents so that the public interest in disclosure remains at the forefront of decision making. The statement of

reasons for the decision must include the public interest factors taken into account (s 26(1)(aa)). Further guidance on conditional exemptions and the public interest test is in Part 6 of these Guidelines. 5.10 Table 1 is extracted from s 31A of the FOI Act and summarises how the FOI Act applies to exempt and conditionally exempt documents. Table 1: Access to exempt and conditionally exempt documents Item 1

If … a document is an exempt document under Division 2 (exemptions) or under paragraph (b) or (c) of the definition of exempt document in s 4(1) (s 7 or an official document of a minister that contains some matter not relating to agency affairs)

then … because of … access to the document s 11A(4) is not required to be given

[page 313] 2

3

4

5

a document is a conditionally exempt document under Division 3 (public interest conditional exemptions)

access to the document is required to be given, unless it would be contrary to the public interest a document is an exempt access to the document document as mentioned in item is not required to be 1, and also a conditionally exempt given document under Division 3 access to a document is refused (a) an edited copy because it contains exempt deleting the exempt matter, and the exempt matter matter must be can be deleted prepared (if practicable); and (b) access to the edited copy must be given a document is an exempt access to the document document because of any may be given apart provision of this Act from under this Act

s 11A(5) (see also s 11B (public interest factors)

ss 11A(4), 11A(6), and 32 (interpretation)

s 22

s 3A (objects – information or documents otherwise accessible)

Commonly used terms 5.11 Certain terms are common to exemptions and conditional exemptions. They are explained below. Would or could reasonably be expected to 5.12 The test ‘would or could reasonably be expected’ appears in the following exemptions and conditional exemptions: national security, defence or international relations (s 33(a)) public safety and law enforcement (ss 37(1), (2)) commercially valuable information (s 47(l)(b)) Commonwealth-State relations (s 47B) certain operations of an agency (ss 47E(a)–(d)) business affairs (ss 47G(l)(a), (b)). 5.13 The test requires the decision maker to assess the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of a document. 5.14 The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.1 [page 314] 5.15 In the context of s 37, decided cases have found that the mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation.2 There must, based on reasonable grounds, be at least a real, significant or material possibility of prejudice.3

Substantial adverse effect 5.16 Several exemptions4 require the decision maker to assess the impact and scale of an expected effect or event that would follow disclosure of the document. That is, the expected effect needs to be both ‘substantial’ and ‘adverse’. 5.17 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’.5 The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’.6 5.18 A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons in order to show their deliberations in determining the extent of the expected effect. Of course, it may sometimes be necessary to use general terms to avoid making the Statement of Reasons itself an ‘exempt document’ (s 26(2)).

Prejudice 5.19 Some exemptions7 and conditional exemptions8 require the decision maker to assess whether the potential disclosure of a document would be prejudicial. The FOI Act does not define prejudice. The Macquarie Dictionary definition of ‘prejudice’ requires: (a) disadvantage resulting from some judgement or action of another (b) resulting injury or detriment. 5.20 A prejudicial effect is one which would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes. The expected outcome does not need to have an impact that is ‘substantial and adverse’.9

[page 315]

Documents affecting national security, defence or international relations (s 33) 5.21 Section 33 exempts documents that affect Australia’s national security, defence or international relations. The exemption comprises two distinct categories of documents: (a) documents which, if disclosed, would, or could reasonably be expected to, cause damage to the Commonwealth’s security, defence or international relations (b) documents that would divulge information communicated in confidence to the Commonwealth by a foreign government, an agency of a foreign government or an international organisation. 5.22 In claiming the exemption, decision makers must examine the content of each document that is relevant to a request and come to a conclusion about whether disclosure of that content would cause, or could reasonably be expected to cause, the harm which the provision seeks to prevent. The context of each document is also relevant because, while the information in the document may not itself cause harm, in combination with other known information it may contribute to a complete picture which results in harm (the ‘mosaic theory’). See paragraphs 5.33–5.34 below for more detail on the mosaic theory. 5.23 The classification markings on a document (such as ‘secret’ or ‘confidential’) are not of themselves conclusive of whether the exemption applies (see also paragraph 5.35 below in relation to information communicated in confidence).

Reasonably expected 5.24

The term ‘reasonably expected’ is explained in greater detail in

paragraphs 5.12–5.15 above. There must be ‘real’ and ‘substantial’ grounds for expecting the damage to occur which can be supported by evidence or reasoning.10 A mere allegation or mere possibility of damage is insufficient to meet the ‘reasonable expectation’ test.

Damage 5.25 ‘Damage’ for the purposes of this exemption is not confined to loss or damage in monetary terms. The relevant damage may be intangible, such as inhibiting future negotiations between the Australian Government and a foreign government, or the future flow of confidential information from a foreign government or agency. In determining whether damage was likely to result from disclosure of the document(s) in question, a decision maker could have regard to the relationships between individuals representing respective governments.11 A dispute between individuals may have sufficient ramifications [page 316] to affect relations between governments. It is not a necessary consequence in all cases but a matter of degree to be determined on the facts of each particular case.12

Security of the Commonwealth 5.26

The term ‘security of the Commonwealth’ broadly refers to: (a) the protection of Australia and its population from activities that are hostile to, or subversive of, the Commonwealth’s interests (b) the security of any communications system or cryptographic system of any country used for defence or the conduct of the Commonwealth’s international relations (see definition in s 4(5)).

5.27

A decision maker must be satisfied that damage to the security of the

Commonwealth would be caused by disclosure of the information under consideration. The claim has been upheld in the following situations: (a) If the release of a document would prevent a security organisation from obtaining information on those engaged in espionage, it could reasonably be expected to cause damage to national security if such a document were released.13 (b) The disclosure of a defence instruction on the Army’s tactical response to terrorism and procedures for assistance in dealing with terrorism would pose a significant risk to security by revealing Australia’s tactics and capabilities.14 (c) Documents revealing, or which would assist in revealing, the identity of an ASIO informant were held exempt under a similar provision in the Archives Act.15

Defence of the Commonwealth 5.28 The Act does not define ‘defence of the Commonwealth’. Previous AAT decisions indicate that the term includes: meeting Australia’s international obligations ensuring the proper conduct of international defence relations deterring and preventing foreign incursions into Australian territory protecting the Defence Force from hindrance or activities which would prejudice its effectiveness.16 5.29 Damage to the defence of the Commonwealth is not necessarily confined to monetary damage (see paragraph 5.25 above). However, in all cases, there must be evidence that the release of the information in question will be likely to cause the damage claimed. [page 317]

International relations 5.30 The phrase ‘international relations’ has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them.17 The exemption is not confined to relations at the formal diplomatic or ministerial level. It also covers relations between government agencies.18 5.31 The mere fact that a government has expressed concern about a disclosure is not enough to satisfy the exemption, but the phrase does encompass intangible damage, such as loss of trust and confidence in the Australian Government or one of its agencies.19 The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship.20 There must also be real and substantial grounds for the conclusion that are supported by evidence.21 These grounds are not fixed in advance, but vary according to the circumstances of each case. 5.32 For example, the disclosure of a document may diminish the confidence which another country would have in Australia as a reliable recipient of its confidential information, making that country or its agencies less willing to cooperate with Australian agencies in future.22 On the other hand, the disclosure of ordinary business communications between health regulatory agencies revealing no more than the fact of consultation will not, of itself, destroy trust and confidence between agencies.23

The mosaic theory 5.33 Normally when assessing the potential harm in releasing a document, a decision maker looks at the contents of the document in question. But when evaluating potential harmful effects of disclosing documents that affect Australia’s national security, defence or international relations, decision

makers may take into account the intelligence technique usually known as the ‘mosaic theory’. This theory holds that individually harmless pieces of information, when combined with other pieces, can generate a composite — a mosaic — that can damage Australia’s national security, defence or international relations.24 Therefore, decision makers may need to consider other sources of information when considering this exemption. [page 318] 5.34 The mosaic theory does not relieve decision makers from evaluating whether there are real and substantial grounds for the expectation that the claimed effects will result from disclosure. It is a question of fact whether the disclosure of the information, alone or in conjunction with other material, could reasonably be expected to enable a person to ascertain the identity or existence of a confidential source.25 This is not always simple. For example, in Re Slater and Cox26 the evidence that persuaded the AAT of a ‘mosaic effect’ claim was an analysis of 22 thirty-five-year-old documents.

Information communicated in confidence 5.35 Section 33(b) exempts information communicated in confidence to the Australian Government or agency by another government or one of its authorities, or by an international organisation. One example is the confidential exchange of police information or information received from a foreign defence force agency.27 5.36 The test is whether information is communicated in confidence between the communicator and the agency to which the communication is made — it is not a matter of determining whether the information is of itself confidential in nature.28 Information is communicated in confidence by or on behalf of another government or authority, if it was communicated and received under an express or implied understanding that the communication

would be kept confidential.29 Whether the information is, in fact, confidential in character and whether it was communicated in circumstances importing an obligation of confidence are relevant considerations.30 They may assist the decision maker to determine whether, on the balance of probabilities, information was communicated in confidence.31 5.37 The relevant time for the test of confidentiality is the time of communication of the information, not the time of the request for access. It is irrelevant for the purposes of the exemption that the foreign government or agency may have since reviewed the status of the document and it is no longer confidential. The document will still be exempt.32 5.38 An agreement to treat documents as confidential does not need to be formal. A general understanding that communications of a particular nature will be treated in confidence will suffice. The understanding of confidentiality may be inferred from the circumstances in which the communication occurred, including the relationship between the parties and the nature of the information communicated.33 To avoid doubt, s 4(10) confirms that the exemption applies to any documents communicated pursuant to any [page 319] treaty or formal instrument on the reciprocal protection of classified information between the Australian Government and a foreign government (and their respective agencies) or an international organisation. 5.39 Classification markings on a document (such as secret or confidential) are not in themselves conclusive of confidential communication. An agency still needs to produce evidence supporting the claim that information was communicated in confidence by a foreign entity. The decision maker must make an independent assessment of that claim in light of the available evidence. Similarly, even where a foreign government or

agency has identified a document as secret or confidential, the decision maker is still required to make an independent assessment that the information was communicated in confidence.34

Extended processing period for consultation 5.40 The standard statutory period for making a decision on an FOI request is 30 days (see Part 3 of these Guidelines). Where a document may be exempt under ss 33(a)(iii) or 33(b), a decision maker may decide to extend the timeframe for making a decision by 30 days to consult a foreign government or authority or an international organisation to assist them in deciding whether the document is exempt (ss 15(7), (8)). This decision must be in writing and must be notified to the applicant as soon as practicable (ss 15(7), (8)(b)). Although the decision maker should take any views expressed during consultation into account, the final decision on whether to grant access to the document lies with the decision maker. 5.41 The form of consultation with a foreign government, authority or organisation will depend on the nature of the relationship between the Australian agency and the foreign entity. For example, there may be agreed procedures for consultation or informal communication between officers may suffice. If the agency is not the primary point of contact for the matter requiring consultation, it should seek the assistance of the agency with that responsibility. In some cases, the appropriate action may be to transfer the request, either in full or in part to that other agency. A decision maker should seek information relevant to establishing whether the grounds for exemption are met. This information may be used to support and explain a claim for exemption in a statement of reasons to the applicant. In all cases, the person consulted should have authority to speak for the foreign entity.

Refusal to confirm or deny existence of a document 5.42 In some instances, the act of confirming or denying whether a document exists can cause harm. For example, knowing that an agency

possesses a copy of a particular document, coupled with the knowledge that the document could originate from only one source, might disclose a confidential source resulting in the effective loss of important information. 5.43 Section 25 of the FOI Act provides that agencies do not need to give information about the existence of documents in another document, such as a s 26 notice, if including that information would cause the latter to be exempt on the grounds set out in ss 33, 37(1) or 45A. (See paragraphs 5.71–5.108 below for further guidance on the application of s 37(1), [page 320] and see paragraphs 5.158–5.165 on s 45A.) The agency may instead give the applicant notice in writing that it neither confirms nor denies the existence of the document, but if the document existed, it would be exempt under s 33. 5.44 As use of this section has the effect of refusing a request for access to a document, resort to s 25 should be reserved strictly for cases where the circumstances of the request require it. 5.45 Section 26(2) also provides that there is no requirement to include information in a notice that, were it contained in a document, would make that document exempt (see Part 8 of these Guidelines).35

Evidence from Inspector-General of Intelligence and Security 5.46 Where the Information Commissioner is conducting a review of a decision refusing access to a document on the grounds of exemption under s 33, before deciding that the document is not exempt, the Information Commissioner must ask the IGIS to give evidence on the criteria under s 33 (ss 55ZA-55ZD). This provision is designed to assist the Information Commissioner by giving access to independent expert advice from the IGIS to determine whether damage could result from disclosure of a document which is claimed to be exempt under the national security exemption, or whether

giving access would divulge information communicated in confidence. For more information on Information Commissioner reviews, see Part 10 of these Guidelines.

Cabinet documents (s 34) 5.47 The Cabinet exemption in s 34 of the FOI Act is designed to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility (fundamental to the Cabinet system) is not undermined. Like the other exemptions in Division 2 of Part IV, this exemption is not subject to the public interest test. The public interest is implicit in the purpose of the exemption itself. The 2010 amendments to the FOI Act introduced some changes to the scope of this exemption. 5.48 ‘Cabinet’ for s 34 purposes means the Cabinet and Cabinet committees (see the definition of Cabinet in s 4(1)). It does not include informal meetings of ministers outside the Cabinet. In any case of doubt whether a body is a Cabinet committee, agencies should consult the Department of the Prime Minister and Cabinet (DPMC). 5.49 Agencies should refer to the Cabinet Handbook issued by DPMC for guidance about Cabinet processes and the underlying principles of the Cabinet system.36 DPMC asks that agencies consult the DPMC FOI Coordinator on any Cabinet-related material identified as being within the scope of an FOI request. [page 321]

Documents included in exemption 5.50

The Cabinet exemption applies to the following classes of documents: (a) Cabinet submissions that: (i)

have been submitted to Cabinet; or

(ii) are proposed for submission to Cabinet; or (iii) were proposed to be submitted but were in fact never submitted and were brought into existence for the dominant purpose of submission for the consideration of Cabinet (s 34(1)(a)) (b) official records of the Cabinet (s 34(1)(b)) (c) documents prepared for the dominant purpose of briefing a minister on a Cabinet submission (s 34(1)(c)) (d) drafts of a Cabinet submission, official records of the Cabinet or a briefing prepared for a minister on a Cabinet submission (s 34(1) (d)). 5.51 The exemption also applies to full or partial copies of the categories of documents listed in paragraph 5.50 above as well as a document that contains an extract from those categories (s 34(2)). 5.52 Any document containing information which, if disclosed, would reveal Cabinet deliberations or a decision is exempt unless the deliberation or decision has been officially disclosed (s 34(3)). The words ‘officially disclosed’ are not defined in the FOI Act and should be given their ordinary meaning. A key element is the official character of the disclosure. Disclosure will commonly be as a result of specific authorisation by the Cabinet itself, and may be undertaken by the Prime Minister, the Cabinet Secretary or a responsible minister. An announcement made in confidence to a limited audience is not an official disclosure for this purpose. 5.53 If a document falls within one of the categories in ss 34(1), 34(2) or 34(3) it qualifies for exemption. Agencies need not consider what harm might flow from disclosure.

Documents excluded from exemption 5.54

There are three exceptions to the general Cabinet exemption rules:

a document is not exempt merely because it is attached to a Cabinet submission, record or briefing (s 34(4)) the document by which a Cabinet decision is officially published is not itself exempt (s 34(5)) purely factual material in a Cabinet submission, record or briefing is not exempt unless its disclosure would reveal a Cabinet deliberation or decision and the decision has not been officially disclosed (s 34(6)). 5.55 Cabinet notebooks are expressly excluded from the operation of the FOI Act (see definition of ‘document’ in s 4(1)).

Documents created for submission to Cabinet 5.56 To be exempt under s 34(1)(a), a document must have been created for the dominant purpose of being submitted for Cabinet’s consideration and must have actually [page 322] been submitted or be proposed by a sponsoring minister to be submitted. Documents in this class may be Cabinet submissions or attachments to Cabinet submissions. 5.57 The inclusion of the ‘dominant purpose’ test was an important change in the 2010 amendments to the FOI Act. Section 34(4) introduces a limit on the Cabinet exemption by making it clear that a document is not exempt only because it is attached to a Cabinet submission. For example, if, at the time a report is brought into existence there was no purpose of submitting it to Cabinet, but it is later decided to submit it to Cabinet, the report will not be covered by s 34(1)(a) because it will not have been brought into existence for the dominant purpose of submission to the Cabinet. It may, however, still

be exempt under s 34(3) if its disclosure would reveal an unpublished Cabinet deliberation or decision. 5.58 The use of the word ‘consideration’ rather than ‘deliberation’ indicates that the Cabinet exemption extends to a document prepared simply to inform Cabinet, the contents of which are intended merely to be noted by Cabinet.37 5.59 Whether a document has been prepared for the dominant purpose of submission to Cabinet is a question of fact. The relevant time for determining the purpose is the time the document was created.38

Official record of the Cabinet 5.60 The term ‘official record of the Cabinet’ in s 34(1)(b) is not defined. The document must be an official record of the Cabinet itself, such as a Cabinet Minute. A document must relate, tell or set down matters concerning Cabinet and its functions in a form that is meant to preserve that relating, telling or setting down for an appreciable time.39 DPMC asks that agencies consult the DPMC FOI Coordinator when deciding whether a document is an official record of the Cabinet (see paragraph 5.49).

Cabinet briefings 5.61 A document that is brought into existence for the dominant purpose of briefing a minister on a submission to Cabinet within the meaning of s 34(1)(a) is an exempt document (s 34(1)(c)). The briefing purpose must have been the dominant purpose at the time of the document’s creation.

Draft Cabinet documents 5.62 Section 34(1)(d) provides that a draft of a Cabinet submission, an official record of the Cabinet or a Cabinet briefing is exempt. ‘Draft’ is not defined.

Copies and extracts

5.63 A document is exempt from disclosure to the extent that it contains a copy or part of or an extract of a document that is, itself, exempt from disclosure for one of the reasons specified in s 34(1) (see s 34(2)). In practice, this means a document that comprises or [page 323] contains a copy of, part of or an extract from a Cabinet submission, a Cabinet briefing or an official record of the Cabinet. A copy or extract should be a quotation from, or exact reproduction of, the Cabinet submission, official record of the Cabinet or the Cabinet briefing. 5.64 It is important to note that coordination comments merit special attention. Normal practice is that such comments are drafted separately from the submission to which they relate by the agencies making the comments. Agencies’ coordination comments are then incorporated into the submission which is submitted to Cabinet for consideration. The AAT has held that a document comprising a copy of coordination comments which were later incorporated into a Cabinet submission was exempt under the previous version of s 34(2) on the basis that it was an extract from the minister’s Cabinet submission.40

Documents disclosing a deliberation or decision of Cabinet 5.65 Section 34(3) exempts documents to the extent that their disclosure would reveal any deliberation or decision of the Cabinet unless the existence of the deliberation or decision has been officially disclosed (‘officially disclosed’ is discussed below at paragraph 5.69). 5.66 ‘Deliberation’ in this context has been interpreted as active debate in Cabinet, or its weighing up of alternatives, with a view to reaching a decision on a matter (but not necessarily arriving at one). In Re Toomer, Deputy

President Forgie analysed earlier consideration of ‘deliberation’ and concluded: Taking its [Cabinet’s] deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes, be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. [Cabinet’s] decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed.41

Purely factual material 5.67 Section 34(6) provides that, in a document to which ss 34(1), 34(2) or 34(3) applies, information is not exempt if it is purely factual material unless: (a) the disclosure of the information would reveal any deliberation or decision of the Cabinet, and (b) the fact of that deliberation or decision has not been officially disclosed. 5.68 Purely factual material includes material such as statistical data, surveys and factual studies. A conclusion involving opinion or judgement is not purely factual material. For example, a projection or prediction of a future event would not usually be considered purely factual. [page 324] 5.69 A distinction between ‘purely factual material’ and ‘deliberative matter’ is drawn also in s 47C. It was noted in Crowe and Department of the Treasury42 that there were two themes in the earlier case law on that distinction in s 47C. The first was that factual analysis and summation can be an integral part of deliberation. This theme is partly captured in s 34(6) in providing that purely factual material may be exempt under the Cabinet exemption if it reveals a Cabinet deliberation or decision that has not otherwise been officially disclosed. The second theme is that purely factual

material may be covered by the exemption if it is so intertwined with deliberative matter that it is not practical to separate it.

‘Officially disclosed’ 5.70 The Cabinet exemption twice refers to a deliberation or decision of the Cabinet being ‘officially disclosed’: ss 34(3) and 34(6)(b). This can refer to disclosure by an oral as well as a written statement — for example, an oral announcement by a minister about a Cabinet decision.43 The disclosure may be a general public disclosure or a disclosure to a limited audience on the understanding that it is not a confidential communication.44 The disclosure must be ‘official’ — for example, authorised by Cabinet or made by a person (such as a minister) acting within the scope of their role or functions. (DPMC asks that agencies consult the DPMC FOI Coordinator before releasing any Cabinet-related document: see paragraph 5.49.)

Documents affecting law enforcement and public safety (s 37) 5.71 This exemption applies to documents which, if released, would or could reasonably be expected to affect law enforcement or public safety in any of the following ways: prejudice the conduct of an investigation of a breach, or possible breach, of the law prejudice the conduct of an investigation of a failure, or possible failure, to comply with a taxation law prejudice the enforcement, or the proper administration, of the law in a particular instance reveal the existence or identity of a confidential informant, or the absence of a confidential source of information, in relation to the enforcement or administration of the law endanger the life or physical safety of any person

prejudice the fair trial of a person, or the impartial adjudication of a particular case disclose lawful methods or procedures for investigating, preventing, detecting or dealing with breaches of the law where disclosure of those methods would be reasonably likely to reduce their effectiveness [page 325] prejudice the maintenance or enforcement of lawful methods for the protection of public safety (see ss 37(1), (2)). 5.72 For the purposes of the exemption, ‘law’ means a law of the Commonwealth or of a State or a Territory (s 37(3)). It encompasses both criminal and civil law. 5.73 Section 37 concerns the investigative or compliance activities of an agency and the enforcement or administration of the law, including the protection of public safety. It is not concerned with an agency’s own obligations to comply with the law. The exemption applies, therefore, where an agency has a function connected with investigating breaches of the law or its enforcement or administration. 5.74 To be exempt under s 37(1)(a) or 37(1)(b) the document in question should have a connection with the criminal law or the processes of upholding or enforcing civil law or administering a law.45 This is not confined to court action or court processes, but extends to the work of agencies in administering legislative schemes and requirements, monitoring compliance, and investigating breaches. The exemption does not depend on the nature of the document or the purpose for which it was brought into existence. A document will be exempt if its disclosure would or could reasonably be expected to have one or more of the consequences set out in the categories listed in paragraph 5.71.

5.75 In applying this exemption, a decision maker should examine the circumstances surrounding the creation of the document and the possible consequences of its release. The adverse consequences need not result only from disclosure of a particular document. The decision maker may also consider whether disclosure, in combination with information already available to the applicant, would result in any of the specified consequences.

Reasonable expectation 5.76 In the context of s 37, as elsewhere in the Act, the mere risk or possibility of prejudice to an investigation is not a sufficient basis for a reasonable expectation of prejudice. However, the use of the word ‘could’ in the reasonable expectation qualification, as distinct from ‘would’, is less stringent. The reasonable expectation refers to activities that might reasonably be expected to have occurred, be presently occurring, or could occur in the future.46

Investigation of a breach of law 5.77 Section 37(1)(a) applies to documents only where there is a current or pending investigation and release of the document would, or could reasonably be expected to, prejudice the conduct of that investigation. Because of the phrase ‘in a particular instance’, it is not sufficient that prejudice will occur to other or future investigations: it must relate to the particular investigation at hand.47 In other words, the exemption does not apply if the prejudice is about investigations in general. [page 326] 5.78 The exemption is concerned with the conduct of an investigation. For example, it would apply where disclosure would forewarn the applicant about the direction of the investigation, as well as the evidence and resources available to the investigating body — putting the investigation in jeopardy.48

The section will not apply if the investigation is closed or if it is being conducted by an overseas agency.49 5.79 Where the investigation is merely suspended or dormant rather than permanently closed, or where new information may revive an investigation, the Information Commissioner considers the exemption should apply. However, the expectation that an investigation may revive should be more than speculative or theoretical and be supported by evidence.50 5.80 Whether prejudice will occur is a question of fact to be determined on the evidence.51 The fact that a document is relevant to an investigation is not, however, sufficient. If the information in the document indicated a breach of the law and was prepared in the course of, or for the purposes of, an investigation, this would be sufficient.52 5.81 It is clear from its terms that the exemption in s 37(1)(a) will not apply if disclosure would benefit rather than prejudice an investigation.

Disclosure of a confidential source 5.82 Section 37(1)(b) is intended to protect the identity of a confidential source of information connected with the administration or the enforcement of the law. It is the source, rather than the information, which is confidential. The exemption is not limited to particular instances in the same way as s 37(1)(a). 5.83

The exemption applies: where the information in question may enable the agency responsible for enforcing or administering a law to enforce or administer it properly the person who supplies that information wishes his or her identity to be known only to those who need to know it for the purpose of enforcing or administering the law53 the information was supplied on the understanding, express or implied, that the source’s identity would remain confidential.

5.84 Section 37(1)(b) can also apply to protect information which would allow the applicant to ascertain the existence or non-existence (rather than the identity) of a confidential source of information.54 [page 327] 5.85 The so-called ‘mosaic theory’ might apply in some cases (see paragraphs 5.33–5.34 above).55 That is, the disclosure of the information in question will lead to its being linked to already available information and thus disclose the identity of the confidential source.56 5.86 Section 37(2A) confirms that a person is a confidential source of information in relation to the enforcement or administration of the law if that person is receiving or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory.

Scope of confidentiality 5.87 Section 37(1)(b) protects the identity of a person who has supplied information on the understanding that their identity would remain confidential. The scope of confidentiality depends on the facts of each case. 5.88 This exemption does not apply if the FOI applicant is aware of the relationship between the agency and the person who supplied the information to the agency, and the applicant is included in the understanding of confidence between the agency and the other person. For example, the exemption did not apply to information disclosed to an agency by an FOI applicant’s financial broker who was interviewed by the agency. The applicant was considered to be included in the relationship of confidence between the broker and the agency. The AAT stated that if the applicant was not privy to the confidence, he was entitled to be.57 5.89

It is not essential that the confidential source provide the information

under an express agreement. Often an implied undertaking of confidentiality can be made out from the circumstances of a particular case.58 For example, the source may have supplied the information under the reasonable expectation that his or her identity would be kept confidential. In some cases, confidentiality can be inferred from the practice of the agency to receive similar types of information in confidence. Two examples are a telephone hotline set up to receive certain types of information from members of the public and expressly promoted as confidential; or information received from a person who could reasonably expect that their identity will not be made known to anyone other than those involved in administering and enforcing the law.59 Nevertheless, the understanding or representation that information will be received confidentially must not be vague or devoid of context. 5.90 The exemption applies independently of whether it was objectively reasonable or in the public interest for the person to supply information on a confidential basis. It is sufficient that the person supplied the information on the basis that their identity would be confidential.60

Enforcement or administration of the law 5.91 The phrase ‘the enforcement or the proper administration of the law’ is not confined to the enforcement or administration of statutory provisions or of the criminal law. [page 328] It requires only that a document should have a connection with the criminal law or with the processes of upholding or enforcing civil law.61

Disclosure of identity 5.92 There must be a reasonable expectation that the contents of the documents in question will disclose the identity of the confidential source.62

Where a person’s identity is not apparent and the information is so general that it is unlikely to lead to the identification of the source, or it could have come from any one of several sources, this element of the exemption is not satisfied. 5.93 If other disclosures already make it possible to determine who the source is, an agency or minister cannot claim this exemption. This is because the necessary quality of confidence is already lost.63 On the other hand, the inadvertent or unauthorised leaking of a document does not diminish the quality of confidence attaching to it.64 5.94 The identity of a person can sometimes be ascertained from sources other than express mention in the document in question. For example, distinctive handwriting in a handwritten letter, the letterhead or the nature of the information which may only be known to a limited number of people.

Endanger the life or physical safety of any person 5.95 Under s 37(1)(c) a document is exempt if its disclosure would, or could reasonably be expected to, make a person a potential target of violence by another individual or group. That is, whether release of the documents could be expected to create the risk, not whether the documents reflect an existing credible threat.65 This exemption requires a reasonable apprehension of danger which will turn on the facts of each particular case. For example, the disclosure of the name of an officer connected with an investigation about threats made by the applicant will not be sufficient.66 A reasonable apprehension does not mean the risk has to be substantial, but evidence is necessary. For instance, intemperate language and previous bad behaviour, without more, does not necessarily support a reasonable apprehension.67 5.96 Some illustrations of the application of the exemption in the Commonwealth, Queensland and Victoria include the following: A reasonable apprehension was shown in Re Ford and Child Support Registrar.68 In this case, a third party gave extensive evidence about her

fear if the FOI applicant was given access to documents. The third party had been the main prosecution [page 329] witness during the FOI applicant’s criminal trial for which he was still in jail. She said he had written threatening letters to her and her friends and she was scared of him. The AAT found that there was a real and objective apprehension of harm and upheld the exemption. The Queensland Information Commissioner, in considering a similar provision in Queensland’s former Freedom of Information Act 1992,69 found that a threat of litigation against a person is not harassment which endangers a person’s life or physical safety.70 The exemption was not satisfied under the corresponding provision in the Victorian Freedom of Information Act 1982, where evidence was produced that one of several institutions where animal experiments were conducted had received a bomb threat. It was held that danger to lives or physical safety was only considered to be a possibility, not a real chance.71

Prejudice to a fair or impartial trial 5.97 A document which, if disclosed would, or could, reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case (s 37(2)(a)) is exempt. This aspect of the exemption operates in specific circumstances. It is necessary to identify which persons would be affected. ‘Trial’ refers to a criminal or civil proceeding before a court or tribunal. The term ‘prejudice’ implies some adverse effect from disclosure. For example, the AAT refused to accept a claim under this section where, on the facts, disclosure of the documents in question to the applicant could have actually facilitated the adjudication of the matter.72 The fact that documents

are relevant to an investigation is not of itself sufficient to justify exemption. Some causal link between the disclosure and the prejudice must be demonstrated.

Prejudice to law enforcement methods and procedures 5.98 Section 37(2)(b) exempts documents which, if released would, or could reasonably be expected to: disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches of the law prejudice the effectiveness of those methods or procedures. 5.99 ‘Lawful methods and procedures’ are not confined to criminal investigations and can, for example, extend to taxation investigations. The exemption focuses on an agency’s methods and procedures for dealing with breaches of the law, where disclosure would, or could reasonably be expected to, adversely affect the effectiveness of those methods and procedures. [page 330] 5.100 The word ‘lawful’ is intended to exclude unlawful methods and procedures, for example, methods involving illegal telephone interception or entrapment. 5.101 This exemption requires satisfaction of two factors. There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.73 If the only result of disclosing the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice. 5.102

The exemption will not apply to routine techniques and procedures

that are already well known to the public or documents containing general information. For example, in Re Russo the AAT rejected a s 37(2)(b) claim about the (then) Australian Securities Commission’s method of allocating priorities to matters, with the observation that disclosing such a method is on par with disclosing that the respondent uses pens, pencils, desks, chairs and filing cabinets in the investigation of possible breaches of the Corporations Law.74 On the other hand, the AAT has held that authoritative knowledge of the particular law enforcement methods used (as opposed to the applicant’s suspicion or deduction) would assist endeavours to evade them.75 5.103 The exemption may apply to methods and procedures that are neither obvious nor a matter of public notoriety, even if evidence of a particular method or procedure has been given in a proceeding before the courts.76 For example, the AAT held that disclosure of examples of acceptable reasons for refusing to vote in a compulsory election from the Australian Electoral Commission’s internal manual would reasonably be expected to prejudice the effectiveness of law enforcement procedures because people who failed to vote would be able to circumvent the procedures by submitting one of the acceptable reasons.77 The exemption is more likely to apply where disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures.78

Protection of public safety 5.104 Section 37(2)(c) exempts documents if disclosure would prejudice the maintenance or enforcement of lawful methods for the protection of public safety. 5.105 The terms ‘lawful’ and ‘prejudice’ apply to s 37(2)(c) in the same manner as described for s 37(2)(b) in paragraphs 5.98–5.103 above. 5.106 The words ‘public safety’ do not extend beyond safety from violations of the law and breaches of the peace.79 The AAT has observed that ‘public safety’ should not be confined to any particular situation, such as civil

emergencies (bushfires, floods and the like) or court cases involving the enforcement of the law. The AAT also noted that considerations [page 331] of public safety and lawful methods will be given much wider scope in times of war than in times of peace.80 5.107 Re Hocking and Department of Defence provides an example of the operation of s 37(2)(c).81 The applicant was denied access to a portion of an army manual dealing with the tactical response to terrorism and to Army procedures to meet requests for assistance in dealing with terrorism because if the relevant section of the manual were made public, there would be a significant risk to security.

Withholding information about the existence of documents 5.108 Section 25 permits an agency to give to an FOI applicant a notice that neither confirms nor denies the existence of a document if information as to its existence would, if it were included in a document, make the document exempt under s 37(1) (see paragraphs 5.42–5.45 above).

Documents to which secrecy provisions apply (s 38) 5.109 A document is exempt if its disclosure is prohibited under a provision of another Act (s 38(1)(a)) and either: that provision is specified in Schedule 3 to the FOI Act (s 38(l)(b)(i)), or s 38 expressly applies to the document or information contained in the document, by that provision, or by another provision of that or any other enactment (s 38(1)(b)(ii)). 5.110

Section 38 is intended to preserve the operation of specific secrecy

provisions in other legislation, including in cases where no other exemption or conditional exemption is available under the FOI Act. The provision has not changed with the 2010 amendments. The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information. Most secrecy provisions allow disclosure in certain circumstances, such as with the applicant’s consent where the information relates to them, or where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions, to disclose the information. 5.111 The effect of s 38(1A) is to limit the use of s 38 to the terms of the particular secrecy provision involved, and the exemption is only available to the extent that the secrecy provision prohibits disclosure. Contrary to normal FOI practice, a decision maker contemplating an exemption under s 38 must consider the identity of the FOI applicant in relation to the document. This is because s 38(1A) permits disclosure of a document in cases where the prescribed secrecy provision does not prohibit disclosure to that person.82 5.112 Section 38 does not apply to documents in so far as they contain personal information about the applicant (s 38(2)). The exception applies only to personal [page 332] information about the applicant and not to ‘mixed personal information’, that is, personal information about the applicant which, if disclosed, would also reveal personal information about another individual. If the FOI applicant’s information can be separated from any third party personal information, the FOI applicant’s information will not be exempt under s 38(1) and can be disclosed. The decision maker may consider providing access to an edited copy (s 22). 5.113

Section 38(3) contains a limited exception to s 38(2). Section 38

continues to apply in relation to a person’s own personal information where that person requests access to a document of which the disclosure is prohibited under s 503A of the Migration Act 1958, as affected by s 503D of that Act. 5.114 A number of secrecy provisions allow disclosure where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions. What is in the course of an officer’s duties should be interpreted broadly as to any routine disclosures that may be linked to those duties or functions.83

Documents subject to legal professional privilege (s 42) 5.115 Section 42(1) exempts a document that is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (LPP). 5.116 The FOI Act does not define LPP for the purposes of the exemption. To determine the application of this exemption, the decision maker needs to turn to common law concepts of privilege. The statutory test of client legal privilege under the Evidence Act 1995 is not applicable and should not be taken into account.84 It is important that each aspect discussed below be addressed in the decision maker’s statement of reasons.

Elements of legal professional privilege 5.117 LPP applies to some but not all communications between legal advisers and clients. The underlying policy basis for LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. It is the purpose of the communication that is determinative.85 The information in a document is relevant and may assist in determining the purpose of the communication, but the information in itself is not determinative.

5.118 At common law, determining whether a communication is privileged requires a consideration of: whether there is a legal adviser-client relationship whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation [page 333] whether the advice given is independent whether the advice given is confidential.86

Legal adviser-client relationship, independence and government lawyers 5.119 A legal adviser-client relationship exists where a client retains the services of a solicitor (or barrister) for the purposes of obtaining professional advice. The existence of the relationship is usually straightforward to establish where advice is received from an independent external legal adviser. A typical example in a government context is advice received by an agency from a law firm that is on an authorised list of panel firms (including the Australian Government Solicitor). 5.120 A legal adviser-client relationship can exist but may not be as readily established when advice is received from a lawyer who works within the agency, whether as an ongoing staff member of the agency or as a lawyer contracted to work within the agency to provide advice. Whether a true adviser-client relationship exists will be a question of fact to be determined on the circumstances applying to the particular advice that was given. That is, there may be a privileged relationship applying to some but not all advice. The following factors are relevant to establishing whether a legal adviserclient relationship exists:

the legal adviser must be acting in his/her capacity as a professional legal adviser the giving of the advice must be attended by the necessary degree of independence the dominant purpose test must be satisfied the advice must be confidential the fact that the advice arose out of a statutory duty does not preclude the privilege from applying87 whether the lawyer is subject to professional standards can be relevant.88 5.121 An in-house lawyer has the necessary degree of independence so long as their personal loyalties, duties or interests do not influence the professional legal advice they give.89 5.122 Having legal qualifications will not suffice in itself to establish that a privileged adviser-client relationship exists. The authorities to date prefer the view that whether an [page 334] adviser holds a practising certificate is a relevant but not a decisive factor.90 Alternatively, a right to practise may be conferred by an Act (for example, ss 55B and 55E of the Judiciary Act 1903). 5.123 For the purpose of the privilege, ‘advice’ extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context.91 However, it does not apply to internal communication that is a routine part of an agency’s administrative functions. The communication must relate to activities generally regarded as falling within a solicitor’s or barrister’s professional functions.

For the purpose of giving or receiving legal advice, or use in actual or anticipated litigation 5.124 Whether LPP attaches to a document depends on the purpose for which the communication in the document was created. The High Court has confirmed that the common law requires a dominant purpose test rather than a sole purpose test.92 The communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice or for use in actual or anticipated litigation. 5.125 The concept of legal advice, while reasonably broad, does not extend to advice that is purely commercial or of a public relations character.93 5.126 Litigation is ‘anticipated’ where there is ‘a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not’.94

Confidentiality 5.127 LPP does not apply to a communication that is not confidential — that is, known only to the client or to a select class with a common interest in the matter — or where the privilege has been waived. Section 42(2) confirms that a document is not exempt if the person entitled to claim LPP waives the privilege. 5.128 LPP can extend to documents containing information that is on the public record if disclosure would reveal confidential communications concerning the seeking and giving of legal advice on the various issues covered by those documents.95 [page 335]

Waiver of privilege

5.129 LPP is the client’s privilege to assert or to waive, and the legal adviser cannot waive it except with the authority of the client.96 In the context of an FOI request, the agency receiving the advice will usually be the ‘client’ agency that will need to decide whether to assert or waive LPP. If the privilege is asserted, that agency will need to provide evidence to establish that the document is exempt from disclosure under s 42. This will be so even if the relevant FOI request is made to a different agency. 5.130 Waiver of privilege may be express or implied. For example, privilege may be waived in circumstances where: the communication in question has been widely distributed, the content of the legal advice in question has been disclosed or a person has publicly announced their reliance on the legal advice in question. 5.131 The High Court has held that waiver of LPP will occur where the earlier disclosure is inconsistent with the confidentiality protected by the privilege.97 This inconsistency test has been more recently affirmed by the High Court as the appropriate test for determining whether privilege has been waived.98 It is immaterial that the client did not intend to waive privilege. 5.132 Not all disclosures to a wider group necessarily imply a waiver. If the document has been disclosed to a limited audience with a mutual interest in the contents of the document, it may not be inconsistent to continue to claim that the document is confidential and privileged. Modern organisations often work in teams and several people may need to know about privileged communications, both in the requesting client organisation and in the firm of legal advisers. Similarly, a limited disclosure of the existence and the effect of legal advice could be consistent with maintaining confidentiality in the actual terms of the advice. Whether the disclosure is inconsistent with maintaining confidentiality will depend on the circumstances of the case.99 The Legal Services Directions 2005 issued by the Attorney-General require legal advices

obtained by Australian Government agencies to be shared in particular circumstances, and complying with this requirement does not waive privilege.100 The Legal Services Directions are available at www.ag.gov.au. 5.133 The Information Commissioner suggests that agencies should take special care in dealing with documents for which they may wish to claim LPP to avoid unintentionally waiving that privilege. [page 336]

The ‘real harm’ test 5.134 Agencies are advised not to claim exemption for a document under s 42 unless it is considered that ‘real harm’ would result from releasing the document. A ‘real harm’ criterion is not an element of the common law doctrine of legal professional privilege, but has been acknowledged within government as a relevant discretionary test to apply in FOI administration.101 The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency. However, an agency’s decision on the ‘real harm’ criterion is not an issue that can be addressed in an IC review. Section 55L of the FOI Act provides that the Information Commissioner cannot decide that access should be given to exempt matter in a document.102

Copies or summary records 5.135 Records made by officers of an agency summarising communications which are themselves privileged also attract the privilege. Privilege may also attach to a copy of an unprivileged document if the copy was made for the dominant purpose of obtaining legal advice or for use in legal proceedings.103

Exception for operational information

5.136 A document is not exempt under s 42(1) by reason only of the inclusion in that document of operational information of an agency (s 42(3)). 5.137 Agencies must publish their operational information under the information publication scheme established by Part II, s 8 of the FOI Act which commenced on 1 May 2011. ‘Operational information’ is information held by an agency to assist the agency to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public or any particular person or entity or class of persons or entities (s 8A). For further information see Part 13 of these Guidelines.

Severance 5.138 If only part of a document contains material that is privileged under s 42, s 22 requires disclosure of the part that is not privileged.104 [page 337]

Documents containing material obtained in confidence (s 45) 5.139 Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.105 5.140 Section 45(2) states that the exemption does not apply to documents to which s 47C(1) (deliberative processes) applies or would apply but for ss 47C(2) or 47C(3), unless the obligation of confidence is owed to persons other than the minister, ministerial staff or agency officers.

5.141 The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, ss 47F (personal privacy) and 47G (business documents).106

Breach of confidence 5.142 A breach of confidence is the failure of a recipient to keep information, which has been communicated in circumstances giving rise to the obligation of confidence, confidential.107 The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.108 5.143 To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information: it must be specifically identified it must have the necessary quality of confidentiality it must have been communicated and received on the basis of a mutual understanding of confidence it must have been disclosed or threatened to be disclosed, without authority unauthorised disclosure of the information has or will cause detriment.109 [page 338] 5.144 A breach of confidence will not arise, and the exemption will not apply, if the information to be disclosed is an ‘iniquity’ in the sense of a crime, civil wrong, or serious misdeed of public importance which ought to be

disclosed to a third party with a real and direct interest in redressing such crime, wrong, or misdeed.110

Specifically identified 5.145 The alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms.111

Quality of confidentiality 5.146 For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality.112 For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential. 5.147 The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it generally. The obligation of confidence may also only relate to a limited time period.

Mutual understanding of confidence 5.148 The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency needs to have understood and accepted an obligation of confidence.113 The mutual understanding must have existed at the time of the communication. The most obvious example is a contractual obligation of confidence. Confidence may arise in other circumstances. For example, when a person gives information to an agency they may ask that it be kept confidential and the agency could accept the information on that basis. 5.149 It may be clear from an agency’s actions whether the agency accepted an obligation of confidence and is maintaining that obligation.114 For example, an agency may mark a document as confidential, keep it

separate from documents that are not confidential and ensure that the material is not disclosed to third parties without consent. 5.150 An obligation of confidentiality may be express or implied.115 An express mutual understanding may occur where the person providing the information asks the agency to keep the information confidential and the agency assures them that they will. Agency practices may illustrate how an implied mutual understanding may arise. For example, if [page 339] an agency has policies and procedures in place for dealing with commercialin-confidence information and those policies and procedures are known by the business community, it may be implied that when a business provides such information to that agency it will be on the basis of confidentiality.116

Unauthorised disclosure or threatened disclosure 5.151 The information must have been or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised. 5.152 For example, the agency may have told the person providing the information about the people to whom the agency would usually disclose such information. The law may require disclosure to third parties in the performance of an agency’s functions, which will amount to authorised use and/or disclosure. Similarly, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group. 5.153 Compliance with a statutory requirement for disclosure of confidential information will not amount to an unauthorised use and will not breach confidentiality.117

Detriment 5.154 The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information.118 Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The last three are applicable only to private persons and entities, but not to government. 5.155 The AAT has applied this element in numerous cases, but whether it must be established is uncertain.119 The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused.120 Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.121 [page 340]

Absence of public policy defence 5.156 An agency must not have an applicable ‘iniquity defence’ (that is, a defence that a higher public interest is served by disclosure). An iniquity defence arises rarely and requires that the iniquity affects either the public generally or the applicant for the information.122

A document to which s 47C(1) applies 5.157 The exemption in s 45(1) does not apply to information that is conditionally exempt under s 47C(1) (deliberative matter), or would be conditionally exempt but for s 47C(2) or 47C(3). For more information about the s 47C conditional exemption see Part 6 of these Guidelines.

Parliamentary Budget Office documents (s 45A)

5.158 While both the Parliamentary Budget Officer and the Parliamentary Budget Office (PBO) are exempt agencies under the FOI Act (s 7(1) and Division 1 of Part I of Schedule 2, and s 68A of the Parliamentary Service Act 1999 (PS Act)), documents related to PBO requests may be held by other agencies. The PBO exemption in s 45A is designed to protect the confidentiality of requests made by Senators and Members of the House of Representatives in relation to the budget or for policy costings outside of the caretaker period of a general election.

Documents included in exemption 5.159

The PBO exemption applies to documents that:

(a) originate from the Parliamentary Budget Officer or the PBO and the document was prepared in response to, or otherwise relates to, a confidential request (s 45A(1)(a)) (b) are brought into existence for the dominant purpose of providing information to the Parliamentary Budget Officer or the PBO in relation to a confidential request (s 45A(1)(b)) (c) are provided to the Parliamentary Budget Officer or the PBO in response to a request for more information in relation to a confidential request (s 45A(1)(c)) (d) are drafts of any of the above type of documents (s 45A(1)(d)). 5.160 The exemption also applies to a full or partial copy of a document of a category listed in paragraph 5.159 above, as well as a document that contains an extract from a document of such a category (s 45A(2)). 5.161 A confidential request is defined in s 45A(8) to be a request made by a Senator or Member under s 64E(1)(a) or (c) of the PS Act that include a direction to treat the request or any other information relating to the request as confidential. This includes confidential requests to prepare a costing of a policy or a proposed policy under s 64H of the PS Act and confidential requests for information relating to the budget under s 64M of the PS Act.

[page 341] 5.162 Any document containing information which, if disclosed, would reveal that a confidential request has been made is exempt unless the confidential request has been disclosed by the Senator or Member who made the request (s 45A(3)).

Documents excluded from exemption 5.163 rules:

There are four exceptions to the general PBO document exemption

a document is not exempt merely because it is attached to a document that would be covered by the exemption (s 45A(4)) information that has been made available by the Parliamentary Budget Officer in accordance with the PS Act is not exempt (s 45A(5)) a document is not an exempt if the information has been made available by the Senator or Member who made the confidential request to which the document relates (s 45A(6)) information in PBO documents which is purely factual material is not exempt unless its disclosure would reveal the existence of a confidential request and the existence of the confidential request has not been disclosed by the Senator or Member (s 45A(7)). 5.164 The exemption only applies to documents prepared by agencies for the ‘dominant purpose’ of providing information to the PBO relating to a confidential request. It does not apply to documents prepared or held by those agencies in the ordinary course of their business or activities. 5.165 The exemption only applies to FOI requests made under s 15 of the FOI Act from 11 October 2012 and does not apply to requests made before this time.123 5.166

Agencies are reminded of their obligations under the Australian

Government Protocols Governing the Engagement between Commonwealth Bodies and the Parliamentary Budget Officer (Protocols) and the Memorandum of Understanding (MOU) between the Parliamentary Budget Office and the Heads of Commonwealth Bodies in relation to the Provision of Information and Documents.124

Withholding information about the existence of documents 5.167 Section 25 permits an agency to give to an FOI applicant a notice that neither confirms nor denies the existence of a document if information as to its existence would, if it were included in a document, make the document exempt under s 45A (see paragraphs 5.42–5.45 above).

Documents whose disclosure would be in contempt of the Parliament or in contempt of court (s 46) 5.168 Section 46 provides that a document is exempt if public disclosure of the document would, apart from the FOI Act and any immunity of the Crown: [page 342] (a) be in contempt of court (b) be contrary to an order or direction by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath (c) infringe the privileges of the Parliament of the Commonwealth or a State, or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory or Norfolk Island. 5.169 Both the Parliament and courts have powers to regulate their own proceedings which have traditionally been regarded as a necessary incident to

their functions as organs of the state. The protection of the privileges of Parliament and the law of contempt of court are designed to allow these institutions to regulate their proceedings and to operate effectively without interference or obstruction. Over the years Royal Commissions and tribunals have assumed similar but more limited powers. 5.170 This provision takes its scope from the principles of privilege and the general law of contempt of court. While these powers have a wide application, FOI decision makers will usually encounter them in connection with the disclosure of documents that may have been prepared for or are relevant to parliamentary or court proceedings.

Apart from this Act 5.171 The effect of the words ‘apart from this Act and any immunity of the Crown’ is to preserve the principles of parliamentary privilege and the law of contempt of court within the operation of the FOI Act. This is achieved by ensuring that the grounds for exemption (that is if disclosure of a document would have any of the effects in s 46(a), 46(b) or 46(c)) may be met notwithstanding that there may be protection from certain actions under the FOI Act (see ss 90–92), or under the protections afforded by the common law to the immunities of the Crown.

Contempt of court 5.172 A contempt of court is an action which interferes with the due administration of justice. It includes, but is not limited to, a deliberate breach of a court order. Other actions that have been found to be contempt of court include an attempt to put improper pressure on a party to court proceedings125 or prejudging the results of proceedings, failing to produce documents as ordered by a court or destroying documents that are likely to be required for proceedings.126 5.173 Documents protected under s 46(a) include documents which are protected by the courts as part of their power to regulate their own

proceedings. For example, a court may prohibit or limit publication of the names of parties or witnesses in litigation, or statements [page 343] and evidence presented to the court. Because public disclosure of such documents would be a contempt of court, the documents would be exempt.

Contrary to an order or direction 5.174 Documents protected by s 46(b) are documents subject to an order prohibiting their publication, made by a Royal Commission, tribunal or other body having power to take evidence on oath. Royal Commissions are established for a fixed time period. However any confidentiality orders continue in effect past this period.127

Infringe the privileges of Parliament 5.175 The term ‘parliamentary privilege’ refers to the privileges or immunities of the Houses of the Parliament and the powers of the Houses to protect the integrity of their processes.128 5.176 Section 49 of the Australian Constitution gives the Australian Parliament the power to declare the ‘powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House’, and provides for the powers, privileges and immunities of the UK House of Commons to apply until a declaration by the Australian Parliament. The Parliamentary Privileges Act 1987 (the Privileges Act) is such a law, addressing some (but not all) aspects of parliamentary privilege as it applies to the Commonwealth Parliament. 5.177 Section 50 of the Australian Constitution provides that each House of the Parliament may make rules and orders with respect to the mode in which its powers, privileges and immunities may be exercised and upheld.

The rules and orders most relevant to FOI decision makers are those which restrict publication or restrict publication without authority. Publication contrary to such rules may amount to an infringement of privilege, providing a basis for claiming the exemption under s 46(c). See in particular House of Representatives Standing Order 242, Senate Standing Order 37 or s 13 of the Privileges Act.129 A decision maker should consult the relevant parliamentary committee if in any doubt, most particularly if the document is a submission or evidence given, or to be given, to a parliamentary committee which has not yet published the document. 5.178 For s 46(c) to apply where there is no rule or order preventing publication, there must be a close connection between a document and some parliamentary purpose to which it relates which could be prejudiced by disclosure. Section 46(c) is concerned with circumstances where information provided to a house or committee of Parliament has been disclosed without authority or the disclosure otherwise improperly interferes with a member of Parliament’s free performance of his or her duties as a member. [page 344] 5.179 Disclosure of briefings to assist ministers in parliament — namely, question time briefs or possible parliamentary questions — would not ordinarily be expected to breach a privilege of Parliament. A document of this kind, while prepared for a minister to assist him or her in responding to potential questions raised in Parliament, is nevertheless an executive document. Unless some clear prejudice to parliamentary proceedings can be demonstrated, s 46(c) should not be claimed for briefings of this kind. Depending on the content of the briefings, other exemptions may apply. 5.180 When assessing documents that may be exempt for a limited time — for example, until a parliamentary committee either publishes or authorises publication of documentary evidence — a decision maker should consider

deferring access under s 21(1)(b). For further guidance on deferring access see Part 3 of these Guidelines.

Documents disclosing trade secrets or commercially valuable information (s 47) 5.181 Section 47 provides that a document is an exempt document if its disclosure would disclose: (a) trade secrets, or (b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed. 5.182

The exemption does not apply if the information in the document is:

(a) in respect of the applicant’s business or professional affairs (b) in respect of an undertaking and the applicant is the proprietor of the undertaking or a person acting on behalf of the proprietor (c) in respect of an organisation and the applicant is the organisation or a person acting on behalf of the organisation (s 47(2)). 5.183 These exceptions reflect that no harm would result from disclosure of documents to the individual or entity that they concern. But the exemption may apply if the information jointly concerns the trade secrets or valuable commercial information of another individual or organisation or another person’s undertaking and that information is not severable from the document.

Trade secrets 5.184 The term ‘trade secret’ is not defined in the FOI Act. The Federal Court has interpreted a trade secret as information possessed by one trader which gives that trader an advantage over its competitors while the information remains generally unknown.130

[page 345] 5.185 The Federal Court referred to the following test in considering whether information amounts to a trade secret: the information is used in a trade or business the owner must limit the dissemination of it or at least not encourage or permit widespread publication if disclosed to a competitor, the information would be liable to cause real or significant harm to the owner of the secret.131 5.186 Factors that a decision maker might regard as useful guidance but not an exhaustive list of matters to be considered include: the extent to which the information is known outside the business of the owner of that information the extent to which the information is known by persons engaged in the owner’s business measures taken by the owner to guard the secrecy of the information the value of the information to the owner and to his or her competitors the effort and money spent by the owner in developing the information the ease or difficulty with which others might acquire or duplicate the secret.132 5.187 Information of a non-technical character may also amount to a trade secret. To be a trade secret, information must be capable of being put to advantageous use by someone involved in an identifiable trade.133

Information having a commercial value 5.188

To be exempt under s 47(1)(b) a document must satisfy two criteria:

the document must contain information that has a commercial value

either to an agency or to another person or body, and the commercial value of the information would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.134 5.189 It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved.135 The information need not necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret or intellectual property.136 [page 346] The following factors may assist in deciding in a particular case whether information has commercial value: whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value whether the information confers a competitive advantage on the agency or person to whom it relates — for example, if it lowers the cost of production or allows access to markets not available to competitors whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that information137 whether the information is still current or out of date (out of date information may no longer have any value)138 whether disclosing the information would reduce the value of a business operation or commercial activity — reflected, perhaps, in a lower share price.

5.190 The time and money invested in generating information will not necessarily mean that it has commercial value. Information that is costly to produce will not necessarily have intrinsic commercial value.139 5.191 The second requirement of s 47(1)(b) — that it could reasonably be expected that disclosure of the information would destroy or diminish its value — must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known.140 Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure — for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.141

Consultation 5.192 Where release of a document may disclose a trade secret or commercially valuable information belonging to an individual, organisation or undertaking other than the applicant, the decision maker must consult the relevant parties. Before making a decision to give access, s 27 requires an agency or minister to give that individual, organisation or undertaking a reasonable opportunity to make a submission that the document should be exempt from disclosure. For further guidance on third party consultation see Parts 6 and 8 of these Guidelines. [page 347]

Electoral rolls and related documents (s 47A) 5.193

A document is an exempt document under s 47A(2) if it is:

(a) an electoral roll (b) a print, or a copy of a print, of an electoral roll

(c) a microfiche of an electoral roll (d) a copy on tape or disc of an electoral roll (e) a document that sets out particulars of only one elector and was used to prepare an electoral roll (f)

a document that is a copy of a document that sets out particulars of only one elector and was used to prepare an electoral roll

(g) a document that contains only copies of a document that sets out particulars of only one elector and was used to prepare an electoral roll (h) a document (including a habitation index within the meaning of the Commonwealth Electoral Act 1918) that sets out particulars of electors and was derived from an electoral roll. 5.194 The exemption extends to electoral rolls (or part of an electoral roll) of a State or Territory or a Division or Subdivision (within the meaning of the Commonwealth Electoral Act) prepared under that Act (s 47A(1)). 5.195 The exemption does not apply where an individual is seeking access to their own electoral records. That is: the part of the electoral roll that sets out the particulars of the elector applying for access (s 47A(3)) any print, copy of a print, microfiche, tape or disk that sets out or reproduces only the particulars entered on an electoral roll in respect of the elector (s 47A(4)) a document that sets out only the particulars of the elector and was used to prepare an electoral roll (s 47A(5)(a)) a copy, with deletions, of a document that sets out particulars of only one elector and was used to prepare an electoral roll (or a copy of such a document) (s 47A(5)(b)) a copy, with deletions, of a document (including a habitation index within the meaning of the Commonwealth Electoral Act) that sets out

particulars of electors and was derived from an electoral roll (s 47A(5) (b)).

1.

Re Maksimovic and Australian Customs Service [2009] AATA 28.

2.

Re News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88.

3.

Chemical Trustee Limited and Ors and Commissioner of Taxation and Chief Executive Officer, AUSTRAC (Joined Party) [2013] AATA 623 (30 August 2013) [78].

4.

Sections 47D, 47E(c), 47E(d), 47J.

5.

See Re Thies and Department of Aviation [1986] AATA 141.

6.

See Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367.

7.

Sections 47D, 47E(c), 47E(d), 47J.

8.

Sections 47E(a), 47E(b), 47G(1)(b).

9.

See Re James and Australian National University [1984] AATA 18.

10. See Re O’Donovan and Attorney-General’s Department [1985] AATA 330; Re Maher and AttorneyGeneral’s Department [1986] AATA 16. 11. See Re Laurence William Maher and Attorney-General’s Department [1985] AATA 180 and Re Aldred and Department of Foreign affairs and Trade [1990] AATA 833. 12. See Arnold v Queensland (1987) 73 ALR 607. 13. Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110. 14. Re Hocking and Department of Defence [1987] AATA 602. 15. Re Throssell and Australian Archives [1987] AATA 453. 16. See for example, Re Dunn and the Department of Defence [2004] AATA 1040. 17. Re McKnight and Australian Archives [1992] AATA 225. 18. Re Haneef and Australian Federal Police [2009] AATA 51. 19. Re Maher and Attorney-General’s Department [1986] AATA 16 as applied in Maksimovic and Attorney-General’s Department [2008] AATA 1089. 20. Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110. 21. Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15. 22. Re Maksimovic and Attorney-General’s Department [2008] AATA 1089. See also O’Sullivan and Department of Foreign Affairs and Trade [2013] AICmr 36 and ‘AA’ and Bureau of Meteorology [2013] AICmr 46. 23. Re Public Interest Advocacy Centre and Department of Community Services and Health and Searle Australia Pty Ltd (No 2) [1991] AATA 723. 24. Re McKnight and Australian Archives [1992] AATA 225. 25. Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392. 26. Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.

27. See for example ‘W and the Australian Federal Police [2013] AICmr 39. 28. Secretary, Department of the Prime Minister and Cabinet v Haneef (2010) 52 AAR 360. 29. Re Maher and Attorney-General’s Department [1986] AATA 16. 30. For examples of the application of these considerations, see O’Sullivan and Department of Foreign Affairs and Trade [2013] AICmr 36; Wake and Australian Broadcasting Corporation [2013] AICmr 45 and AA and Bureau of Meteorology [2013] AICmr 46. 31. Re Environment Centre NT Inc and Department of the Environment, Sport and Territories [1994] AATA 301. 32. Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15. 33. Re Maher and Attorney-General’s Department [1986] AATA 16. 34. Re Anderson and Department of Special Minister of State [1984] AATA 478. 35. See also Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited [2010] FCA 1442 for discussion of ss 25 and 26 in relation to decisions that do not provide information as to the existence of documents. 36. Available at www.dpmc.gov.au. 37. Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301. 38. Re Fisse and Secretary, Department of the Treasury [2008] AATA 288. 39. Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301. 40. Re McKinnon and Department of Prime Minister and Cabinet [2007] AATA 1969. 41. Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301. 42. [2013] AICmr 69 [80]-[83]. 43. The phrase used prior to the 2010 FOI Act amendments was ‘officially published’. This was taken to mean publication by a written document in Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 [101]. 44. Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 [101]. 45. Re Gold and Australian Federal Police and National Crime Authority [1994] AATA 382. 46. Re Maksimovic and Australian Customs Service [2009] AATA 28. 47. Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249. 48. News Corporation v National Companies and Securities Commission [1984] 5 FCR 88. 49. Re Rees and Australian Federal Police [1999] AATA 444. 50. Re Doulman and CEO of Customs [2003] AATA 883. 51. Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249. 52. Re O'Grady v Australian Federal Police [1983] AATA 390. 53. Department of Health v Jephcott (1985) 8 FCR 85. 54. Re Jephcott and Department of Community Services [1986] AATA 248. 55. For an example, see Besser and Attorney-General’s Department [2013] AICmr 12. 56. Re Petroulias and Others v Commissioner of Taxation [2006] AATA 333. 57. Re Lander and Australian Taxation Office [1985] AATA 296.

58. Department of Health v Jephcott (1985) 8 FCR 85. 59. ‘X’ and Australian Federal Police [2013] AICm r 40. 60. Besser and Attorney-General’s Department [2013] AICmr 12. 61. Re Gold and Australian Federal Police and National Crime Authority [1994] AATA 382, citing Young CJ in Accident Compensation Commission v Croom (1991) 2 VR 322, 324. 62. Re Rees and Australian Federal Police [1999] AATA 252. 63. Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437. 64. Re Cullen and Australian Federal Police [1991] AATA 671. 65. ‘I’ and Australian National University [2012] AICmr 12 66. Re Boehm and Department of Industry Technology and Commerce [1985] AATA 60. 67. Re Dykstra and Centrelink [2002] AATA 659. 68. Re Ford and Child Support Registrar [2006] AATA 283. 69. Now replaced by the Right to Information Act 2009. 70. Re Murphy and Queensland Treasury [1995] QICmr 23. 71. Re Binnie and Department of Agriculture and Rural Affairs (1987) VAR 361. 72. Re O’Grady v Australian Federal Police [1983] AATA 390. 73. Re Anderson and Australian Federal Police [1986] AATA 78. 74. Re Russo v Australian Securities Commission [1992] AATA 228. 75. Re Edelsten and Australian Federal Police [1985] AATA 350. 76. Re Tand Queensland Health (1994) 1 QAR 386. 77. Re Murphy and Australian Electoral Commission [1994] AATA 149. 78. Re Anderson and Australian Federal Police [1986] AATA 79. 79. Re Thies and Department of Aviation [1986] AATA 141. 80. Re Parisi and Australian Federal Police (Qld) [1987] AATA 395. 81. Re Hocking and Department of Defence [1987] AATA 602. 82. Re Young and Commissioner of Taxation [2008] AATA 155; see also ‘A’ and Department of Health and Ageing [2011] AICmr4, 13–16. 83. Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1. 84. Commonwealth of Australia v Dutton (2000) 102 FCR 168. 85. Mann v Carnell as restated in Comcare v Foster (2006) 42 AAR 434. 86. Grant v Downs (1976) 135 CLR 674; Waterford v Commonwealth of Australia (1987) 163 CLR 54. For examples of the application of these considerations see Hamden and Department of Human Services [2013] AICmr 41; ‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 and Rudd and Civil Aviation Safety Authority [2013] AICmr 56. 87. Waterford v Commonwealth of Australia (1987) 163 CLR 54. 88. Re Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317 which restates the principles of Waterford v Commonwealth of Australia (1987) 163 CLR 54. 89. Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 [10], referring to Telstra

Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 [35]. 90. Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 [23]. See also Re McKinnon and Department of Foreign Affairs [2004] AATA 1365, referring to Australian Hospital Care Pty Ltd v Duggan [1999] VSC 134. Note a contrary ruling by Crispin J in Vance v McCormack and the Commonwealth [2004] ACTSC 78, reversed on appeal but on a different point. 91. AWB Limited v Cole (2006) 235 ALR 307. 92. Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49. 93. College of Law Limited v Australian National University [2013] FCA 492 [23]. 94. Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 [17]-[20]; Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 [30]. 95. Comcare v Foster (2006) 150 FCR 301. 96. Re Haneef and the Australian Federal Police [2009] AATA 51. 97. Mann v Carnell (1999) 201 CLR 1. 98. Osland v Secretary to the Department of Justice [2008] HCA 37. 99. Osland v Secretary to the Department of Justice [2008] HCA 37; Doney and Department of Finance and Deregulation [2012] AICmr 25. 100. Judiciary Act 1903 s 55ZH (4). 101. This view is in line with the advisory notice issued by the then Secretary of the Attorney-General’s Department dated 2 March 1986 (the ‘Brazil Direction’), following a Cabinet decision in June 1985. 102. See Doney and Department of Finance and Deregulation [2012] AICmr 25, Hamden and Department of Human Services [2013] AICmr 41 and Rudd and Civil Aviation Safety Authority [2013] AICmr 56. 103. Re Haneef and Australian Federal Police and Commonwealth Director of Public Prosecutions [2010] AATA 514. 104. See Doney and Department of Finance and Deregulation [2012] AICmr 25. 105. See the Explanatory Memorandum, Freedom of Information Bill 1992; Re Kamminga and Australian National University [1992] AATA 84; dissenting judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 [443]. 106. See the Explanatory Memorandum, Freedom of Information Bill 1981. 107. Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41. 108. Re Petroulias and Others and Commissioner of Taxation [2006] AATA 333. 109. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 [443] referring to Commonwealth v John Fairfax & Sons Ltd (1980) 32 ALR 485. For examples of the application of these criteria see Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11; ‘B’ and Department of Immigration and Citizenship [2013] AICmr 9; ACP Magazines Limited and IP Australia [2013] AICmr 20; Upper Dumaresq Action Group and Australian Competition and Consumer Commission [2013] AICmr 47; and ‘AF’ and Department of

Immigration and Citizenship [2013] AICmr 54. 110. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434. 111. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434. 112. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434. 113. Re Harts Pty Ltd and Tax Agents’ Board (Qld) [1994] AATA 349. 114. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434. 115. See Re Bunting and Minister Immigration and Multicultural and Indigenous Affairs [2006] AATA 145. 116. See Re Bunting and Minister Immigration and Multicultural and Indigenous Affairs [2006] AATA 145; Re Minter Ellison and Australian Customs Service [1989] AATA 66. 117. Re Malcolm Thomas Drabsch and Collector of Customs and Ingersoll-Rand (Australia) Limited [1990] AATA 265. 118. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 [443] referring to Commonwealth v John Fairfax & Sons Ltd (1980) 32 ALR 485. 119. Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; Petroulias and Others and Commissioner of Taxation [2006] AATA 333. 120. Re Callejo and Department of Immigration and Citizenship [2010] AATA 244 discussing Smith Kline & French Laboratories (Aust) Limited v Department of Community Services & Health (1989) 89 ALR 366. 121. Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279. 122. Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279. 123. Item 12, Schedule 1, Freedom of Information Amendment (Parliamentary Budget Office) Act 2012. 124. Available at www.finance.gov.au. 125. Attorney-General v Times Newspapers Ltd [1973] 3 All ER 54 in which an article criticising the small size of an offer of settlement of a negligence claim was found to be in contempt because it improperly applied pressure to induce a litigant to settle. 126. For further information on contempt of court see AGS Legal Briefing # 56, available at www.ags.gov.au. 127. Re KJ Aldred and Department of Prime Minister and Cabinet [1989] AATA 148. 128. See Senate Brief No 11, available at www.aph.gov.au. 129. Section 13 of the Privileges Act prohibits any person from publishing or disclosing without authority a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera unless the House or committee has already published the document or authorised its publication. The prohibition also extends to oral evidence. 130. Department of Employment, Workplace Relations and Small Business v Staff Development and Training Company (2001) 114 FCR 301. 131. Lansing Linde Ltd v Kerr (1990) 21 IPR 529 per Staughton LJ [536], cited in Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992)

108 ALR 163. 132. Re Organon (Aust) Pty Ltd and Department of Community Services and Health [1987] AATA 396. 133. Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163. 134. See McKinnon and Department of Immigration and Citizenship [2012] AICmr 34. 135. Re Mangan and The Treasury [2005] AATA 898; Re Metcalf Pty Ltd and Western Power Corporation [1996] WAICmr 23. 136. McKinnon and Department of Immigration and Citizenship [2012] AICmr 34 [42]. 137. Re Cannon and Australian Quality Egg Farms (1994) 1 QAR 491 and Re Hassell and Department of Health of Western Australia [1994] WAICmr 25. 138. Re Angel and the Department of the Arts, Heritage and the Environment [1985] AATA 314. 139. Re Hassell and Department of Health Western Australia [1994] WAICmr 25. 140. See for example ‘D’ and Civil Aviation Safety Authority [2013] AICmr 13. 141. McKinnon and Department of Immigration and Citizenship [2012] AICmr 34 [45].

Index References are to paragraph numbers

A Access to information application for see Request for access charges …. s 29 circumstances when must be given ACT …. 1.3.24 Cth …. 1.3.20, s 11A NSW …. 1.3.26 NT …. 1.3.25 Qld …. 1.3.27 SA …. 1.3.28 Tas …. 1.3.29 Vic …. 1.3.30 WA …. 1.3.31 decision on request for see Decision on request for access deferral of ACT …. 1.3.48 Cth …. 1.3.47, s 21 states and territories …. 1.3.49 document of an agency ACT …. 1.2.6 Cth …. 1.2.1 definition …. 1.2.54, s 4

Vic …. 1.2.18 excluded documents see Excluded documents exempt documents see Exempt documents exempt or irrelevant material deleted ACT …. 1.3.51 Cth …. 1.3.50, s 22, 5.3 notice to applicant …. 1.3.50, s 22 NSW …. 1.3.53 NT …. 1.3.52 Qld …. 1.3.54 SA …. 1.3.55 Tas …. 1.3.56 Vic …. 1.3.57 WA …. 1.3.58 form of ACT …. 1.3.36 Cth …. 1.3.32–1.3.35, s 20 NSW …. 1.3.38–1.3.40 NT …. 1.3.37 Qld …. 1.3.41 SA …. 1.3.42, 1.3.43 Tas …. 1.3.44 Vic …. 1.3.45 WA …. 1.3.46 how to obtain …. 1.2.72 Cth …. 1.2.73–1.2.78 guidance on …. 1.2.78 request see Request for access

states and territories …. 1.2.79–1.2.95 information that may be accessed see Information that may be accessed limited means of agencies …. 1.3.35 mandatory …. 1.3.20, s 11A provision on request …. 1.3.20, s 11A refusal of see Refusal of access request for see Request for access review of decision on see Review of decisions right of abuse of (SA) …. 1.3.83 Cth …. 1.1.5, s 11 reasons, not affected by …. 1.2.2

ACT Civil and Administrative Tribunal (ACAT) review by …. 1.6.47, 1.6.59 appeal to Supreme Court …. 1.6.70

ACT enactments definition …. s 4 not enactments …. s 4A

Administrative Appeals Tribunal (Cth) FOI Act applicable to …. 1.1.7 review by see Administrative Appeals Tribunal review

Administrative Appeals Tribunal review application for …. 1.6.57, PR 7 application of s 28 AAT Act …. s 62 constitution of Tribunal exempt documents, proceedings about …. s 58B

modification of s 42 AAT Act …. s 58D costs, recommendations as to …. s 66 decision not to review decision …. s 57A exempt documents constitution in proceedings about …. s 58B national security documents …. s 58E production of …. s 58E, s 64 guide …. s 57 IC review decision …. 1.6.56, s 57A modification of AAT Act …. s 58D, s 61A national security documents evidence by Inspector-General of Intelligence and Security …. s 60A production of …. s 58E notice to affected third parties …. s 60AA circumstances where not required …. s 60AB onus of proof …. s 61 parties …. s 60 powers of Tribunal …. s 58 amending records, limitation …. s 58AA further searches, requiring …. s 58A procedure …. ss 60–62 protection of information non-disclosure, ensuring …. s 63 production of exempt documents …. s 64 reviewable decisions …. 1.6.57, s 57A stay of decisions, automatic …. s 67 time for application …. 1.6.57 tribunal reviewable decisions …. s 57A

Administrative Decisions Tribunal (NSW) review by …. 1.6.61 appeal to Supreme Court …. 1.6.72

Adoption exempt information (WA) …. 1.4.201

Agency or public authority agency, definition ACT …. 1.2.55 Cth …. 1.1.7, 1.2.50, 1.5.2 NSW …. 1.2.60 Qld …. 1.2.62 SA …. 1.2.64 Vic …. 1.2.68 WA …. 1.2.70 amendment of record held by see Amendment of records Cth FOI Act applicable to …. 1.1.7 Department, definition Cth …. 1.2.51, s 4 document of see Document of an agency exempt Cth …. 1.1.18, s 7, Sch 2 particular documents, in relation to …. Sch 2 states and territories …. 1.1.19 Information Commissioner, provision of information to …. s 93 inspection, documents to be available for …. s 9 prescribed authority, definition ACT …. 1.2.55

Cth …. 1.5.2, s 4 Vic …. 1.2.68 procedures, conditionally exempt documents ACT …. 1.4.110 Cth …. 1.4.109, s 47E, 5.8 NSW …. 1.4.112 NT …. 1.4.111 Qld …. 1.4.113 SA …. 1.4.114 Tas …. 1.4.115 Vic …. 1.4.116 WA …. 1.4.117 ‘would or could reasonably be expected to’ …. 5.12–5.15 protection from civil liability …. s 90, s 91 protection from criminal liability …. s 92 public authority, definition NSW …. 1.2.60 Qld …. 1.2.62 Tas …. 1.2.66 public sector organisation (NT) …. 1.2.57 definition …. 1.2.58 record of …. 1.2.59 publication of information about functions and documents of …. s 8 right of access to information held by ACT …. 1.2.6 Qld …. 1.2.14 Tas …. 1.2.16 Vic …. 1.2.18

WA …. 1.2.19 state FOI laws applicable to …. 1.1.17

Amendment of records AAT review, limitation …. s 58AA agency definition …. 1.5.2 record kept by …. 1.5.1 annotation see Annotation of records application for ACT …. 1.5.5, 1.5.15 Australian citizen (ACT) …. 1.5.5 Cth …. 1.5.13, 1.5.14, s 48, s 49 NSW …. 1.5.17 NT …. 1.5.16 precedent …. 1.5.4, PR 4 Qld …. 1.5.18 reasons, setting out …. 1.5.14 requirements …. 1.5.13, s 49 SA …. 1.5.19 Tas …. 1.5.20 Vic …. 1.5.21 WA …. 1.5.22 Cth …. 1.5.1–1.5.4 decision not made within time, deemed refusal …. s 51DA discretion unfettered …. 1.5.3 Information Commissioner, limitations IC review …. s 55M

investigation …. s 89D method of …. 1.5.24, s 50 notice of decision ACT …. 1.5.54 Cth …. 1.5.53, s 51D NSW …. 1.5.56 NT …. 1.5.55 Qld …. 1.5.57 SA …. 1.5.58 Tas …. 1.5.59 Vic …. 1.5.60 WA …. 1.5.61 Ombudsman, limitations …. s 89J prescribed authority definition …. 1.5.2 record kept by …. 1.5.1 review of decision onus …. s 61 transfer of application ACT …. 1.5.45 Cth …. 1.5.44, s 51C NSW …. 1.5.47 NT …. 1.5.46 Qld …. 1.5.48 SA …. 1.5.49 Tas …. 1.5.50 Vic …. 1.5.51 WA …. 1.5.52

unfettered discretion …. 1.5.3 when allowed ACT …. 1.5.26 Cth …. 1.5.23–1.5.25 NSW …. 1.5.28 NT …. 1.5.27 Qld …. 1.5.29 SA …. 1.5.30 Tas …. 1.5.31 Vic …. 1.5.32 WA …. 1.5.33 when needed ACT …. 1.5.5 Cth …. 1.5.1–1.5.4 NSW …. 1.5.7 NT …. 1.5.6 Qld …. 1.5.8 SA …. 1.5.9 Tas …. 1.5.10 Vic …. 1.5.11 WA …. 1.5.12

Annotation of records see also Amendment of records application for ACT …. 1.5.5, 1.5.15 Cth …. 1.5.13, 1.5.34, s 48, s 51A NSW …. 1.5.17

NT …. 1.5.16 onus …. s 61 Qld …. 1.5.18 requirements …. 1.5.34, s 51A SA …. 1.5.19 Tas …. 1.5.20 Vic …. 1.5.21 WA …. 1.5.22 comments on …. s 51E decision not made within time, deemed refusal …. s 51DA method of …. 1.5.35, s 51B notice of decision ACT …. 1.5.54 Cth …. 1.5.53, s 51D NSW …. 1.5.56 NT …. 1.5.55 Qld …. 1.5.57 SA …. 1.5.58 Tas …. 1.5.59 Vic …. 1.5.60 WA …. 1.5.61 unsuccessful application for amendment, after …. s 51 when allowed ACT …. 1.5.36 Cth …. 1.5.34 NSW …. 1.5.38 NT …. 1.5.37 Qld …. 1.5.39

SA …. 1.5.40 Tas …. 1.5.41 Vic …. 1.5.42 WA …. 1.5.43 when needed ACT …. 1.5.5 Cth …. 1.5.1–1.5.4 NSW …. 1.5.7 NT …. 1.5.6 Qld …. 1.5.8 SA …. 1.5.9 Tas …. 1.5.10 Vic …. 1.5.11 WA …. 1.5.12

Appeals Court of Appeal (Qld) …. 1.6.73 District Court (SA) …. 1.6.63, 1.6.74 Federal Court, to findings of fact …. s 56A IC review, from …. 1.6.67, s 56 precedent …. 1.6.69, PR 8 Rules and forms …. 1.6.68 Supreme Court, to ACT …. 1.6.70 NSW …. 1.6.72 NT …. 1.6.60, 1.6.71 Tas …. 1.6.64, 1.6.75

Vic …. 1.6.76 WA …. 1.6.66, 1.6.77

Application for access see Request for access Assistance with request Cth …. 1.2.74 Tas …. 1.2.91 Vic …. 1.2.93 WA …. 1.2.95

Assisted reproduction excluded documents (NSW) …. 1.2.28

Auditor-General exemption …. 1.1.18, s 7, Sch 2

Australian Fair Pay Commission Act to apply in administrative matters …. s 6, Sch 1

Australian Government Solicitor exemption …. 1.1.18, s 7, Sch 2

Australian Industrial Relations Commission Act to apply in administrative matters …. s 6, Sch 1

Australian Security Intelligence Organization (ASIO) exemption …. 1.1.18, s 7, Sch 2 informant, documents revealing identity of …. 5.27

B Breach of confidence definition …. 5.142 detriment …. 5.154, 5.155

elements of action …. 1.4.180, 5.143–5.155 exemption where disclosure would be see Confidential information ‘iniquity’ defence …. 5.144, 5.156 mutual understanding of confidence …. 5.148–5.150 obligation of confidence …. 1.4.180, 5.148 other actions distinguished …. 1.4.182 protection from liability for …. s 90 quality of confidence …. 5.146, 5.147 specifically identified …. 1.4.180, 5.145 unauthorised disclosure …. 5.151–5.153

Breach of privilege see Parliamentary privilege Business, commercial or professional documents access after review or appeal opportunities run out …. 1.3.114, s 27 conditional exemption ACT …. 1.4.149 Cth …. 1.3.113, 1.4.142–1.4.148, s 47G, 5.8 NSW …. 1.4.151 NT …. 1.4.150 public interest and …. 1.4.46 Qld …. 1.4.152 SA …. 1.4.153 Tas …. 1.4.154 trade secrets excluded …. 1.4.144, 5.8 unreasonable and adverse effect of disclosure …. 1.4.143, 1.4.145 Vic …. 1.4.155, 1.4.156 WA …. 1.4.157 ‘would or could reasonably be expected to’ …. 5.12–5.15

conditions for access …. 1.3.114 exemption contention …. 1.3.113 procedure for access request ACT …. 1.3.127 consultation …. s 27 Cth …. 1.3.113–1.3.115, s 27 notice of decision …. s 27 NSW …. 1.3.129 NT …. 1.3.128 protection from liability where non-compliance …. s 91 Qld …. 1.3.130 SA …. 1.3.131 submissions, opportunity to make …. 1.3.114, s 27 Tas …. 1.3.132 Vic …. 1.3.133 WA …. 1.3.134 public interest, disclosure in …. 1.4.46 status as member of profession excluded …. 1.4.148 undertaking, meaning …. 1.4.147

C Cabinet documents AAT review, production at …. s 58E briefings …. 1.4.45, s 34, 5.61 Cabinet, definition …. 1.4.45, s 4, 5.48 Cabinet Handbook, guidance from …. 5.49 Cabinet notebook ACT …. 1.2.25, 1.4.49

Cth …. 1.2.53 definition …. 1.2.53, s 4 ‘document’ excludes …. 1.2.53, 5.55 classes of documents exempt …. 5.50 coordination comments …. 5.64 copies and extracts …. 1.4.45, s 34, 5.63 deliberations or decisions deliberation, meaning …. 5.66 document by which published, not exempt …. 5.54 documents revealing …. 1.4.49, s 34, 5.52, 5.65 documents for submission to Cabinet …. 5.56–5.59 consideration, for …. 5.58 dominant purpose test …. 5.57, 5.59 documents included …. 1.4.45, 5.50 draft documents …. 1.4.45, s 34, 5.62 exclusions from exemption …. 1.4.46, s 34, 5.54 Cabinet notebooks …. 1.2.53, s 4, 5.55 purely factual material …. 1.4.46, s 34, 5.67 exemption ACT …. 1.2.25, 1.4.49 classes of documents …. 5.50 Cth …. 1.2.53, 1.4.45–1.4.48, s 34, 5.6, 5.47–5.70 exceptions …. 1.4.46, s 34, 5.54 NSW …. 1.2.29, 1.4.51 NT …. 1.4.50 Qld …. 1.4.52 qualification for …. 5.53 SA …. 1.2.32, 1.4.53

Tas …. 1.4.54 Vic …. 1.2.34, 1.4.55 WA …. 1.2.36, 1.4.56 full or partial copies …. 5.51 IC review, production at …. s 55U official records …. 1.4.45, s 34, 5.60 officially disclosed, meaning …. 5.70 protection of confidentiality …. 5.47 purely factual material …. 5.67–5.69 deliberative matter distinguished …. 5.69 meaning …. 5.68 not exempt …. 1.4.46, s 34, 5.67 purpose of exemption …. 5.47 submissions for consideration …. 1.4.45, 1.4.47 time of bringing into existence …. 1.4.48

Charges access request, for …. s 29

Commercial activities definition …. s 7 exemption for documents relating to Cth …. 1.1.18, s 7 states and territories …. 1.1.20

Commercially valuable information business affairs exemption not applicable …. 1.4.144, 5.8 consultation with relevant parties …. 5.192 destroying or diminishing value …. 5.188 evidence …. 5.191

reasonable expectation …. 5.12–5.15, 5.191 exemption …. 1.4.144, s 47, 5.6, 5.188–5.191 criteria for …. 5.188 exceptions …. s 47, 5.182, 5.183 factors in determining …. 5.189 question of fact …. 5.189 time and money invested …. 5.190

Commission documents excluded documents Qld …. 1.2.31 Tas …. 1.2.33 WA …. 1.2.36

Commonwealth contracts definition …. s 4 requirements for …. s 6C

Commonwealth-state relations conditionally exempt documents ACT …. 1.4.37 communicated in confidence …. 1.4.35 Cth …. 1.4.35, 1.4.36, s 47B, 5.8 Norfolk Island …. 1.4.35, s 47B NSW …. 1.4.39 NT …. 1.4.38 Qld …. 1.4.40 SA …. 1.4.41 Tas …. 1.4.42 Vic …. 1.4.43

WA …. 1.4.44 ‘would or could reasonably be expected to’ …. 5.12–5.15 meaning …. 1.4.36 procedure for documents relating to ACT …. 1.3.119 application of s 26A(1) …. 1.3.109 consultation arrangements …. 1.3.109, s 26A Cth …. 1.3.108–1.3.112 decision to grant access …. 1.3.108, s 26A edited copies, access to …. s 26A Norfolk Island …. 1.3.112, s 26AA notice to state and applicant …. 1.3.110 NSW …. 1.3.121 NT …. 1.3.120 protection from liability where non-compliance …. s 91 public interest, access contrary to …. 1.3.109 Qld …. 1.3.122 SA …. 1.3.123 state-originated information …. 1.3.109, s 26A Tas …. 1.3.124 Vic …. 1.3.125 WA …. 1.3.126

Companies and securities legislation exempt documents (ACT) …. 1.4.201

Complaints information Commissioner, to …. s 70 investigation see Information Commissioner investigations

Ombudsman, to see Ombudsman

Computer request for information stored on ACT …. 1.3.12 Cth …. 1.3.11, s 17 NSW …. 1.3.14 NT …. 1.3.13 Qld …. 1.3.15 SA …. 1.3.16 Tas …. 1.3.17 Vic …. 1.3.18 WA …. 1.3.19

Conditionally exempt documents access to …. 1.4.12, 5.10 agency procedures ACT …. 1.4.110 Cth …. 1.4.109, s 47E, 5.8 NSW …. 1.4.112 NT …. 1.4.111 Qld …. 1.4.113 SA …. 1.4.114 Tas …. 1.4.115 Vic …. 1.4.116 WA …. 1.4.117 author seniority not factor …. 1.4.14, s 11B benefit to community as a whole …. 1.4.203 business, commercial or professional affairs

ACT …. 1.4.149 Cth …. 1.3.113, 1.4.142–1.4.148, s 47G, 5.8 NSW …. 1.4.151 NT …. 1.4.150 Qld …. 1.4.152 SA …. 1.4.153 Tas …. 1.4.154 Vic …. 1.4.155, 1.4.156 WA …. 1.4.157 Commonwealth-state relations, affecting ACT …. 1.4.37 Cth …. 1.4.35, 1.4.36, s 47B, 5.8 Norfolk Island …. 1.4.35, s 47B NSW …. 1.4.39 NT …. 1.4.38 Qld …. 1.4.40 SA …. 1.4.41 Tas …. 1.4.42 Vic …. 1.4.43 WA …. 1.4.44 confusion not factor …. 1.4.14, s 11B Cth …. 1.1.21, 1.4.11–1.4.15, s 11A, 5.8–5.10 definition …. 1.4.11, s 4 degree of adverse effect …. 1.4.13 deliberative processes ACT …. 1.4.63 Cth …. 1.4.57–1.4.62, s 47C, 5.8 NSW …. 1.4.65

NT …. 1.4.64 Qld …. 1.4.66 SA …. 1.4.67 Tas …. 1.4.68 Vic …. 1.4.69 WA …. 1.4.70 exempt documents distinguished …. 1.2.3 factors favouring access …. 1.4.15, s 11B government embarrassment not factor …. 1.4.14, s 11B government financial or property interests, concerning ACT …. 1.4.101 Cth …. 1.4.100, s 47D, 5.8 Norfolk Island …. 1.4.100, s 47D NSW …. 1.4.103 NT …. 1.4.102 Qld …. 1.4.104 SA …. 1.4.105 Tas …. 1.4.106 Vic …. 1.4.107 WA …. 1.4.108 guidelines …. s 11B internal working documents ACT …. 1.4.63 Cth …. 1.4.57–1.4.62, s 47C, 5.8 NSW …. 1.4.65 NT …. 1.4.64 Qld …. 1.4.66

refusal of access …. 1.4.61, PR 3 SA …. 1.4.67 Tas …. 1.4.68 Vic …. 1.4.69 WA …. 1.4.70 irrelevant factors …. 1.4.14, s 11B national economy, relating to ACT …. 1.4.171 Cth …. 1.4.167–1.4.170, s 47J, 5.8 NSW …. 1.4.173 NT …. 1.4.172 Qld …. 1.4.174 SA …. 1.4.175 Tas …. 1.4.176 Vic …. 1.4.177 WA …. 1.4.178 personal privacy, affecting access by qualified person …. 1.4.119, s 47F ACT …. 1.4.123 Cth …. 1.4.118–1.4.122, s 47F, 5.8 NSW …. 1.4.125 NT …. 1.4.124 public interest test not applicable …. 1.4.122 Qld …. 1.4.126 SA …. 1.4.127 Tas …. 1.4.128 Vic …. 1.4.129 WA …. 1.4.130

potential misinterpretation not factor …. 1.4.14, s 11B public interest ACT …. 1.4.17 Cth …. 1.4.11–1.4.15, s 11A, 5.9 degree of adverse effect …. 1.4.13 disclosure contrary to …. 1.4.12, 1.4.13 factors favouring access …. 1.4.15, s 11B guidelines …. s 11B high threshold …. 1.4.202 irrelevant factors …. 1.4.14, s 11B NSW …. 1.4.19 NT …. 1.2.9, 1.4.18 Qld …. 1.4.20 SA …. 1.4.21 Tas …. 1.4.22 Vic …. 1.4.23 WA …. 1.4.24 research, relating to ACT …. 1.4.159 Cth …. 1.4.158, s 47H, Sch 4, 5.8 NSW …. 1.4.161 NT …. 1.4.160 Qld …. 1.4.162 SA …. 1.4.163 specified institutions …. s 47H, Sch 4 Tas …. 1.4.164 Vic …. 1.4.165

WA …. 1.4.166 state and territory laws not providing for …. 1.2.5, 1.4.16

Confidential information breach of confidence …. 5.142–5.155 detriment …. 5.154, 5.155 elements of action …. 1.4.180, 5.143–5.155 exemption where disclosure would be …. 1.4.180–1.4.190, s 45, 5.6 ‘iniquity’ defence …. 5.144, 5.156 other actions distinguished …. 1.4.182 protection from liability for …. s 90 unauthorised disclosure …. 5.151–5.153 exemption ACT …. 1.4.183 Cth …. 1.4.179–1.4.182, s 45, 5.6, 5.139–5.157 deliberative processes excluded …. s 45, 5.140, 5.157 exclusions from …. 1.4.179, s 45 NSW …. 1.4.185 NT …. 1.4.184 other exemptions distinguished …. 5.141 Qld …. 1.4.186 SA …. 1.4.187 Tas …. 1.4.188 Vic …. 1.4.189 WA …. 1.4.190 foreign government or international organisation, from agreement to treat as confidential …. 5.38 classification markings …. 5.39

exemption …. 1.4.25, s 33, 5.35–5.39 information as to existence …. s 25, 5.43, 5.44 refusal to confirm or deny existence …. s 25, 5.42–5.45 test of …. 5.36 time for test …. 5.37 loss of confidentiality …. 5.147 mutual understanding of confidence …. 5.148–5.150 obligation of confidence …. 1.4.180, 5.148 acceptance by agency …. 5.149 existing at time of communication …. 5.148 express or implied …. 5.150 public domain, not in …. 1.4.181 quality of confidence …. 5.146 loss of …. 5.147 specifically identified …. 1.4.180, 5.145 unauthorised disclosure …. 5.151–5.153 compliance with statute not constituting …. 5.153 example …. 5.152 waiver of confidentiality …. 5.147

Confidential source exemption …. 1.4.71, s 37, 5.82–5.94 disclosure of identity …. 1.4.71, 1.4.74, 1.4.76, s 37, 5.92–5.94 enforcement or administration of law …. 5.91 implied undertaking of confidentiality …. 5.89 information as to existence …. 1.4.71, 1.4.76, s 37, 5.84 mosaic theory …. 1.4.77, 5.85 reasonableness and public interest not factors …. 5.90

scope of confidentiality …. 1.4.76, 5.87–5.90 witness protection program …. 1.4.74, s 37, 5.86

Consultation business documents, request for …. s 27 commercially valuable information, request for …. 5.192 intergovernmental relations, documents affecting consultation arrangements …. 1.3.109, s 26A Norfolk Island …. s 26AA personal documents, request for …. s 27A protection from liability where non-compliance …. s 91 request consultation process definition …. s 24AB extension of consultation period …. s 24AB refusal of access to allow …. s 24 requirement to notify …. s 24AB trade secret, request for …. 5.192

Contempt or breach of privilege ‘apart from this Act’ …. 5.171 contempt of court …. 5.172 documents protected …. 5.173 exemption …. 1.4.191, s 46, 5.6, 5.168 purpose of law …. 5.169 contrary or order or direction …. 5.174 exemption where disclosure could constitute ACT …. 1.4.192 Cth …. 1.4.191, s 46, 5.6, 5.168–5.180 NSW …. 1.4.194

NT …. 1.4.193 Qld …. 1.4.195 SA …. 1.4.196 Tas …. 1.4.197 Vic …. 1.4.198 WA …. 1.4.199 parliamentary privilege …. 5.169, 5.175–5.180 briefings …. 5.179 close connection …. 5.178 constitutional provision …. 5.176 definition …. 5.175 exemption …. 1.4.191, s 46, 5.6, 5.168 exemption for limited time …. 5.180 protection of …. 5.169 rules and orders relating to …. 5.177 scope of provision …. 5.170

Copyright infringement protection from liability for …. s 90 refusal of access in particular form due to ACT …. 1.3.36 Cth …. 1.3.33 NSW …. 1.3.39 Qld …. 1.3.41 SA …. 1.3.43 Tas …. 1.3.44 Vic …. 1.3.45

Court documents

administrative matters …. 1.1.18 exemption Cth …. 1.1.18 states and territories …. 1.1.20

Courts appeals to see Appeals FOI Act applicable …. 1.1.7, s 5

D Deceased person procedure for information about ACT …. 1.3.135 Cth …. 1.3.116 NT …. 1.3.136 Qld …. 1.3.138 SA …. 1.3.139 Vic …. 1.3.141 WA …. 1.3.142

Decision on request for access access grant decision …. 1.6.3, s 53B IC review see Information Commissioner (IC) review internal review see Internal review access refusal decision …. 1.6.3, s 53A IC review see Information Commissioner (IC) review internal review see Internal review ACT …. 1.3.61 Cth …. 1.3.59, 1.3.60

notice of refusal or deferral ACT …. 1.3.100 Cth …. 1.3.98 NSW …. 1.3.102 NT …. 1.3.101 Qld …. 1.3.103 SA …. 1.3.104 Tas …. 1.3.105 Vic …. 1.3.106 WA …. 1.3.107 NSW …. 1.3.63 NT …. 1.3.62 Qld …. 1.3.64 refusal of see Refusal of access review see Review of decisions SA …. 1.3.65 Tas …. 1.3.66 Vic …. 1.3.67 WA …. 1.3.68

Defamation protection from liability for …. s 90

Defence see National security exemption Defence intelligence document definition …. s 7 exemption in relation to …. s 7

Deferral of access ACT …. 1.3.48

Cth …. 1.3.47, s 21 notice of …. 1.3.98 states and territories …. 1.3.49

Deliberative processes conditional exemption ACT …. 1.4.63 Cth …. 1.4.57–1.4.62, s 47C, 5.8 NSW …. 1.4.65 NT …. 1.4.64 Qld …. 1.4.66 refusal of access …. 1.4.61, PR 3 SA …. 1.4.67 Tas …. 1.4.68 Vic …. 1.4.69 WA …. 1.4.70 confidentiality exemption not applicable …. s 45, 5.140, 5.157

Democracy FOI Act promoting …. 1.1.5, 1.1.15 well-informed citizenry and …. 1.1.5

Discovery FOI laws substituting for …. 1.1.9

District Court appeal to (SA) …. 1.6.63, 1.6.74

Document agency, of see Document of an agency definition

ACT …. 1.2.56 Cth …. 1.2.52–1.2.54, s 4, 5.2 Vic …. 1.2.69 WA …. 1.2.71 excluded see Excluded documents exempt see Exempt documents refusal to confirm or deny existence …. s 25, 5.42–5.45 withholding information as to existence …. s 25, 5.43, 5.44 law enforcement documents …. 5.108 Parliamentary Budget Office documents …. 5.167

Document of an agency access to ACT …. 1.2.6 Cth …. 1.2.1 Vic …. 1.2.18 definition …. 1.2.54, s 4 documents deemed not to be …. 1.2.23, s 13 memorial collection …. 1.2.23, s 13 inspection, available for …. s 9 publication of information about …. s 8 purchase, available for …. s 9 unpublished documents not to prejudice public …. s 10

E Edited copies, access to Commonwealth-state relations, documents affecting …. s 26A exempt or irrelevant material deleted

ACT …. 1.3.51 Cth …. 1.3.50, s 22, 5.3 NSW …. 1.3.53 NT …. 1.3.52 Qld …. 1.3.54 SA …. 1.3.55 Tas …. 1.3.56 Vic …. 1.3.57 WA …. 1.3.58 notice to applicant …. 1.3.50, s 22 personal information …. s 27A

Electoral roll definition …. s 47A exempt document …. 1.4.200, s 47A, 5.193–5.195 own, access to …. 5.195 state or territory, of …. 5.194

Endangered species exempt information (Tas) …. 1.4.201

Excluded documents access subject to …. 1.2.20 ACT …. 1.2.25 Cth …. 1.2.21–1.2.24, s 12 documents deemed not documents of an agency …. 1.2.23, s 13 examples …. 1.2.22 NSW …. 1.2.28, 1.2.29 NT …. 1.2.26, 1.2.27 Qld …. 1.2.30, 1.2.31, 1.2.63

SA …. 1.2.32 Tas …. 1.2.33 Vic …. 1.2.34 WA …. 1.2.35–1.2.37

Exempt agencies ACT …. 1.1.19 Cth …. 1.1.18, s 7, Sch 2 NT …. 1.1.19 particular documents, in relation to …. Sch 2 Qld …. 1.1.19 SA …. 1.1.19 Tas …. 1.1.19 Vic …. 1.1.19 WA …. 1.1.19

Exempt documents AAT review constitution of …. s 58B production of …. s 58E, s 64 access to …. 5.10 agency permitting …. s 3A, 5.7 withholding …. 1.3.21, 1.4.2, s 11A, s 31A, 5.2 ACT …. 1.1.20, 1.4.201 adoption information …. 1.4.201 budgetary information for local governments …. 1.4.201 Cabinet documents see Cabinet documents categories of …. 5.5 commercial documents

Cth …. 1.1.18, s 7 states and territories …. 1.1.20 commercially valuable information …. 1.4.144, s 47, 5.6, 5.181, 5.188–5.192 exceptions …. 5.182, 5.183 commonly used terms …. 5.11–5.20 prejudice …. 5.19–5.20 substantial adverse effect …. 5.16–5.18 would or could reasonably be expected to …. 5.12–5.15 companies legislation, under …. 1.4.201 conditionally exempt see Conditionally exempt documents confidence, given in see Confidential information contempt or breach of privilege ACT …. 1.4.192 Cth …. 1.4.191, s 46, 5.6, 5.168–5.180 NSW …. 1.4.194 NT …. 1.4.193 Qld …. 1.4.195 SA …. 1.4.196 Tas …. 1.4.197 Vic …. 1.4.198 WA …. 1.4.199 court documents Cth …. 1.1.18 states and territories …. 1.1.20 Cth …. 1.1.18, 1.4.200, 5.1–5.10 Pt IV Div 2, under …. 5.6, 5.7 Pt IV Div 3, under …. 5.8, 5.9 deemed not document of an agency …. 1.1.21

defence see National security exemption definition …. 1.4.1, s 4, s 31B, 5.1 economy, information about municipal district …. 1.4.201 national see National economy electoral roll …. 1.4.200, s 47A, 5.193–5.195 endangered species, information about …. 1.4.201 entirely exempt documents Cth …. 1.1.18 states and territories …. 1.1.20 excluded from access …. 1.1.21, s 11A, s 31A excluded information NSW …. 1.4.5 exempt at time of request …. 5.2 exempt, definition ACT …. 1.4.3 Cth …. 1.4.1, s 4, s 31B NT …. 1.4.4 Qld …. 1.4.6 SA …. 1.4.7 Tas …. 1.4.8 Vic …. 1.4.9 WA …. 1.4.10 exempt from access …. 1.1.21, 1.4.2, s 11A, s 31A foreign government, confidential communication from …. 1.4.25, s 33, 5.35–5.39 IC review no power to give access to …. s 55L

production of …. s 55T, s 55U Information Commissioner investigation non-disclosure of …. s 89C production of …. s 81 intelligence agency documents Cth …. 1.1.18 Qld …. 1.2.30 states and territories …. 1.1.20 international organisation, confidential communication from …. 1.4.25, s 33, 5.35–5.39 international relations, affecting ACT …. 1.4.27 Cth …. 1.4.25, 1.4.26, s 33, 5.6, 5.21–5.25, 5.30–5.32 NSW …. 1.4.29 NT …. 1.4.28 Qld …. 1.4.30 SA …. 1.4.31 Tas …. 1.4.32 Vic …. 1.4.33 WA …. 1.4.34 interpretation of Part …. s 32 law enforcement see Law enforcement and public safety exemption legal professional privilege see Legal professional privilege library or archive documents ACT …. 1.2.25 NSW …. 1.2.26 SA …. 1.2.32, 1.4.201 national security see National security exemption

NSW …. 1.1.20, 1.4.201 NT …. 1.1.20, 1.4.201 Parliamentary Budget Office documents …. s 45A, 5.6, 5.158–5.167 documents excluded …. 5.163–5.166 documents included …. 5.159–5.162 information as to existence of …. s 25, 5.43, 5.44, 5.167 prejudice, meaning …. 5.19–5.20 public interest see Conditionally exempt documents public safety see Law enforcement and public safety exemption Qld …. 1.1.20, 1.2.63, 1.4.201 refusal of access request where response would be ACT …. 1.3.90 Cth …. 1.3.87–1.3.89 NSW …. 1.3.92 NT …. 1.3.91 Qld …. 1.3.93 SA …. 1.3.94 Tas …. 1.3.95 Vic …. 1.3.96 WA …. 1.3.97 SA …. 1.1.20, 1.4.201 secrecy provisions apply …. 5.109–5.114 ACT …. 1.4.92 Cth …. 1.1.22, 1.4.88–1.4.91, s 38, Sch 3, 5.6, 5.109–5.114 NSW …. 1.4.94 NT …. 1.4.93 Qld …. 1.4.95

SA …. 1.4.96 states and territories …. 1.1.24 Tas …. 1.4.97 Vic …. 1.2.34, 1.4.98 WA …. 1.4.99 substantial adverse effect …. 5.16–5.18 Tas …. 1.1.20, 1.4.201 time of request, at …. 5.2 trade secrets …. 1.4.144, s 47, 5.6, 5.181–5.187 exceptions …. s 47, 5.182, 5.183 transport accident inquiries …. 1.4.201 Vic …. 1.1.20, 1.4.201–1.4.203 WA …. 1.1.20, 1.4.201 ‘would or could reasonably be expected to’ …. 5.12–5.15

Exempt or irrelevant material deletion by agency or Minister ACT …. 1.3.51 Cth …. 1.3.50, s 22, 5.3 notice to applicant …. 1.3.50, s 22 NSW …. 1.3.53 NT …. 1.3.52 Qld …. 1.3.54 SA …. 1.3.55 Tas …. 1.3.56 Vic …. 1.3.57 WA …. 1.3.58

Exemption certificate

NT …. 1.2.27 WA …. 1.2.37

Exemption contention business or commercial information …. 1.3.113 personal information …. 1.3.116

F Federal Court IC review appeal from …. 1.6.67, s 56 findings of fact …. s 56A precedent …. 1.6.69, PR 8 documents, sending and disclosure of …. s 55J reference of questions of law …. s 55H Rules and forms …. 1.6.68

Financial or property interests of Government see Government financial or property interests Foreign government information communicated in confidence by agreement to treat as confidential …. 5.38 classification markings …. 5.39 exemption …. 1.4.25, s 33, 5.35–5.39 information as to existence …. s 25, 5.43, 5.44 refusal to confirm or deny existence …. s 25, 5.42–5.45 test of …. 5.36 time for test …. 5.37

Form of access

ACT …. 1.3.36 Cth …. 1.3.32–1.3.35, s 20 limited means of agencies …. 1.3.35 NSW …. 1.3.38–1.3.40 NT …. 1.3.37 Qld …. 1.3.41 request for particular form ACT …. 1.3.36 Cth …. 1.3.33, s 20 giving in another form …. 1.3.34, s 20 refusal …. 1.3.33–1.3.46, s 20 SA …. 1.3.42, 1.3.43 Tas …. 1.3.44 Vic …. 1.3.45 WA …. 1.3.46

Freedom of Information Act 1982 (Cth) amendments in 2010 …. 1.1.4 application …. 1.1.7 courts in administrative matters …. s 5 exclusions from …. 1.2.21, s 12 Official Secretary to the Governor-General …. 1.1.7, 1.1.18, s 6A tribunals in administrative matters …. s 6, Sch 1 citation …. s 1 commencement …. s 2 exempt agencies see Exempt agencies exempt documents see Exempt documents Guidelines, regard to …. 1.1.8

interpretation …. s 4 Norfolk Island, extension to …. 1.1.5, s 4B objects …. 1.1.5, 1.2.39, s 3 general …. s 3 information or documents otherwise accessible …. s 3A interpretation best achieving …. 1.1.6 regulations …. s 94 review of operation …. s 93B state and territory laws based on …. 1.1.3

Freedom of information laws amendment of records under see Amendment of records application …. 1.1.5–1.1.18 ACT …. 1.1.11 Cth …. 1.1.5–1.1.9 NSW …. 1.1.12 NT …. 1.1.12 Qld …. 1.1.13 SA …. 1.1.14 Tas …. 1.1.15 Vic …. 1.1.11 WA …. 1.1.17 broad approach …. 1.2.38–1.2.48 Commonwealth see Freedom of Information Act 1982 (Cth) discovery, substituting for …. 1.1.9 exempt agencies see Exempt agencies exempt documents see Exempt documents Governor, whether applicable to …. 1.1.20

objects …. 1.1.5–1.1.18 ACT …. 1.1.11, 1.2.41 Cth …. 1.1.5–1.1.9, 1.2.39 NSW …. 1.1.12, 1.2.43 NT …. 1.1.12, 1.2.42 Qld …. 1.1.13, 1.2.44 SA …. 1.1.14, 1.2.45 Tas …. 1.1.15, 1.2.46 Vic …. 1.1.11, 1.2.47 WA …. 1.1.17, 1.2.48 overview …. 1.1.1–1.1.4 request under see Request for access states and territories …. 1.1.3 application …. 1.1.10–1.1.16 Cth FOI Act, based on …. 1.1.4 objects …. 1.1.10–1.1.16 variations between jurisdictions …. 1.1.4, 1.1.17 subpoena, substituting for …. 1.1.9 variations between jurisdictions …. 1.1.4, 1.1.17

G Government financial or property interests conditionally exempt documents ACT …. 1.4.101 Cth …. 1.4.100, s 47D, 5.8 Norfolk Island …. 1.4.100, s 47D NSW …. 1.4.103 NT …. 1.4.102

Qld …. 1.4.104 SA …. 1.4.105 Tas …. 1.4.106 Vic …. 1.4.107 WA …. 1.4.108

Government information agency see Agency or public authority Cabinet documents see Cabinet documents definition …. 1.2.8, 1.2.11 exemption certificate (NT) …. 1.2.27 financial or property interests see Government financial or property interests local government budgetary information exempt documents (Qld) …. 1.4.201 presumption in favour of disclosure NSW …. 1.2.13, 1.4.19 right of access to NSW …. 1.2.10–1.2.12 NT …. 1.2.7–1.2.9 SA …. 1.2.15

Governor FOI Acts applicable, whether …. 1.1.20

Governor-General, Official Secretary to FOI Act applicable to …. 1.1.7, s 6A administrative matters …. 1.1.18

Guidelines issue by Information Commissioner …. 1.1.8, s 93A

regard to …. 1.1.8

H Housing assistance excluded documents (ACT) …. 1.2.25

Human Rights Commission (NSW) exemption …. 1.1.19

I Industrial Registrar Act to apply in administrative matters …. s 6, Sch 1

Information Access Office definition …. s 10 statement about agency documents at …. s 9 documents not included …. s 10

Information Commissioner agencies to provide information to …. s 93 complaints to …. s 70 Guidelines issued by …. 1.1.8, s 93A investigations see Information Commissioner investigations oath or affirmation, administration of …. s 55X, s 83 review by see Information Commissioner (IC) review staff, security clearance …. s 89P vexatious applicant declaration …. s 89K effect …. s 89M grounds for …. s 89L review by AAT …. s 89N

Information Commissioner investigations amending records, limit on …. s 89D authority to enter premises …. s 77 complaints …. s 70 protection from civil action resulting from …. s 89E conduct of …. s 76 dealings with documents …. s 80 decision whether to investigate discretion not to investigate …. s 73 interpretation of provisions …. s 71 notice of …. s 75 preliminary inquiries …. s 72 transfer to Ombudsman …. s 74 discretion not to investigate …. s 73 discretion to investigate …. s 69 documents dealing with …. s 80 exempt …. s 81 notice to produce …. s 79 entry to premises …. s 77 authorised person …. s 77 places where approval required …. s 78 exempt documents non-disclosure of …. s 89C production of …. s 81 further searches …. s 55V implementation notice …. s 89

failure to take action in response …. s 89A investigation recommendations definition …. s 88 failure to implement …. s 89 notice of …. s 86 investigation results definition …. s 87 notice of …. s 86 report …. s 89B notice of decision to investigate …. s 75 notice on completion …. s 86 non-disclosure of certain matters …. s 89C notice to appear …. s 82 notice to produce documents …. s 79 oath or affirmation, administration of …. s 83 obligation to investigate …. s 69 outcome power to enter premises …. s 77 power to investigate …. s 69 procedure …. ss 76–85 production of documents exempt documents …. s 81 legal professional privilege not lost …. s 84 notice to produce …. s 79 protection from liability …. s 85 report …. s 89B non-disclosure of certain matters …. s 89C transfer to Ombudsman …. s 74

Information Commissioner (IC) review access grant decision …. 1.6.40, s 54M definition …. 1.6.3, s 53B time for application …. s 54S access refusal decision …. 1.6.40, s 54L application for …. PR 6 definition …. 1.6.3, s 53A revocation or variation of …. s 55G time for application …. s 54S ACT, no provision for …. 1.6.47 affected third party …. s 53C application by …. s 54A amending records, limit on …. s 55M appeal to Federal Court from …. 1.6.67, s 56 findings of fact …. s 56A precedent …. 1.6.69, PR 8 Rules and forms …. 1.6.68 appeal to Supreme Court from NT …. 1.6.60, 1.6.71 Qld …. 1.6.73 WA …. 1.6.66, 1.6.77 application for content …. s 54N Cth …. 1.6.41, s 54N delivery …. s 54N extension of time …. s 54T IC review applicant, definition …. s 54J

IC review application, definition …. s 54H notice to affected third parties …. s 54P NSW …. 1.6.49 NT …. 1.6.48 opposition to …. s 54T precedent …. 1.6.46, PR 6 Qld …. 1.6.50 reasonable opportunity to be heard …. s 54T time limit …. s 54S Vic …. 1.6.53 WA …. 1.6.54 withdrawal …. s 54R assistance from decision-maker …. s 55D Cth …. 1.6.40–1.6.46 decision on …. 1.6.44, s 55K amending records, limit on …. s 55M correction of errors …. s 55Q enforcement against agency …. s 55P exempt documents, no power to give access to …. s 55L obligation to comply with …. s 55N review by AAT …. s 57A decision to review (Cth) actual decision made after IC review commenced …. s 54Y discretion not to review …. s 54W interpretation of Div 5 …. s 54U preliminary inquiries …. s 54V review by AAT …. s 57A discretion not to review …. s 54W

notice if exercised …. s 54X exempt documents no power to give access to …. s 55L power to require production …. s 55T, s 55U extension of time …. s 54T failure to make decision deemed affirmation …. 1.6.42 Federal Court appeal to …. 1.6.67, s 56 findings of fact …. s 56A precedent …. 1.6.69, PR 8 documents, sending and disclosure of …. s 55J reference of questions of law …. s 55H guide …. s 54F hearing by Commissioner, application for …. 1.6.45, s 55B IC review, definition …. 1.6.43, s 54G IC reviewable decision access grant decision …. 1.6.40, s 54M access refusal decision …. 1.6.40, s 54L definition …. 1.6.40, s 54K information gathering powers …. ss 55R–55Z Cabinet documents …. s 55U dealings with documents …. s 55S exempt documents …. s 55T further searches …. s 55V legal professional privilege not lost …. s 55Y national security documents …. s 55U notice to appear …. s 55W

notice to produce …. s 55R oath or affirmation, administration of …. s 55X Parliamentary Budget Office documents …. s 55U protection from liability …. s 55Z national security documents evidence by Inspector-General of Intelligence and Security …. s 55ZA, 5.46 compliance with request …. s 55ZC procedural matters …. s 55ZD request to give …. s 55ZB production, power to require …. s 55U notice before undertaking …. s 54Z notice to affected third parties …. s 54P when not required …. s 54Q NSW …. 1.6.49 NT …. 1.6.48 onus of proof …. s 55D original decision-maker assistance from …. s 55D inadequate reasons from …. s 55E parties to proceeding …. s 55A powers of Commissioner on …. 1.6.44 procedure …. ss 55–55G Qld …. 1.6.50 representation at …. s 55C review of decision by tribunal AAT (Cth) see Administrative Appeals Tribunal review ADT (NSW) …. 1.6.61

QCAT …. 1.6.62 VCAT …. 1.6.65 review parties reaching agreement …. s 55F SA, no provision for …. 1.6.51 Tas, no provision for …. 1.6.52 time for application Cth …. s 54S NSW …. 1.6.49 Vic …. 1.6.53 time for decision on Cth …. 1.6.42 NT …. 1.6.48 Vic …. 1.6.53 WA …. 1.6.54 withdrawal of application …. s 54R

Information that may be accessed ACT …. 1.2.6 agency/public authority document ACT …. 1.2.6 Cth …. 1.2.1 Qld …. 1.2.14 Tas …. 1.2.16 Vic …. 1.2.18 WA …. 1.2.19 broad approach …. 1.2.38–1.2.48 Cth …. 1.2.1–1.2.4 excluded documents …. 1.2.20

Cth …. 1.2.21–1.2.24 states and territories …. 1.2.25–1.2.37 exempt documents see Exempt documents government information definition …. 1.2.8, 1.2.11 NSW …. 1.2.10–1.2.12 NT …. 1.2.7–1.2.9 SA …. 1.2.15 information, definition Tas …. 1.2.67 NSW …. 1.2.10–1.2.13 NT …. 1.2.7–1.2.9 presumption in favour of disclosure NSW …. 1.2.13 Qld …. 1.2.14 Qld …. 1.2.14 SA …. 1.2.15 states and territories …. 1.2.5–1.2.19 Tas …. 1.2.16, 1.2.17 Vic …. 1.2.18 WA …. 1.2.19

Inspection agency documents to be available for …. s 9

Inspector-General of Intelligence and Security AAT review, evidence at …. s 60A exemption …. s 7, Sch 2 IC review, evidence at …. s 55ZA, 5.46

compliance with request …. s 55ZC procedural matters …. s 55ZD request to give …. s 55ZB

Intelligence agency documents definition …. s 7 exemption in relation to Cth …. 1.1.18, s 7 Qld …. 1.2.30 states and territories …. 1.1.20

Internal review access grant decision …. 1.6.2, s 54A definition …. 1.6.3, s 53B access refusal decision …. 1.6.2, s 54 definition …. 1.6.3, s 53A ACT …. 1.6.9–1.6.12 application for ACT …. 1.6.10 Cth …. 1.6.2, s 54B NSW …. 1.6.18 NT …. 1.6.14 precedent …. 1.6.4, PR 5 Qld …. 1.6.22 SA …. 1.6.26 Tas …. 1.6.29 Vic …. 1.6.32 WA …. 1.6.38 complaint (Vic) …. 1.6.34, 1.6.35

Cth …. 1.6.1–1.6.8 decision on ACT …. 1.6.12 Cth …. 1.6.6, s 54C NSW …. 1.6.19 SA …. 1.6.27 Tas …. 1.6.30 WA …. 1.6.39 exclusions from application of Pt VI …. s 54E extension of time agency applying for …. s 54D applicant applying for …. s 54B failure to make decision in time, deemed affirmation …. 1.6.8, s 54D grant of …. 1.6.7 guide to Pt VI …. s 52 inquiries (Vic) …. 1.6.36 interpretation of Pt VI …. s 53 non-reviewable decisions (Qld) …. 1.6.24 notice and reasons for decision on ACT …. 1.6.12 Cth …. 1.6.6, s 54C NT …. 1.6.16 NSW …. 1.6.17–1.6.20 NT …. 1.6.13–1.6.16 provision for Cth …. 1.6.1 Tas …. 1.6.29 Vic …. 1.6.31

Qld …. 1.6.21–1.6.24 refusal to grant …. 1.6.6 reasons …. 1.6.6 right of ACT …. 1.6.9 Cth …. 1.6.6 NSW …. 1.6.17 NT …. 1.6.13 Qld …. 1.6.21 SA …. 1.6.25 WA …. 1.6.37 SA …. 1.6.25–1.6.27 time for application ACT …. 1.6.10 Cth …. 1.6.5, s 54B NSW …. 1.6.18 NT …. 1.6.14 Qld …. 1.6.22 SA …. 1.6.26 Tas …. 1.6.29 Vic …. 1.6.32 WA …. 1.6.38 time for decision Cth …. 1.6.7 NSW …. 1.6.20 Qld …. 1.6.23 Vic …. 1.6.32

Vic …. 1.6.31–1.6.36 WA …. 1.6.37–1.6.39

Internal working documents conditional exemption ACT …. 1.4.63 Cth …. 1.4.57–1.4.62, s 47C, 5.8 NSW …. 1.4.65 NT …. 1.4.64 Qld …. 1.4.66 SA …. 1.4.67 Tas …. 1.4.68 Vic …. 1.4.69 WA …. 1.4.70 deliberative process, acquired in course of …. 1.4.58, 1.4.60 exceptions …. 1.4.62 Norfolk Island …. 1.4.58 opinion, advice or recommendation …. 1.4.58 refusal of access …. 1.4.61, PR 3 thinking process, disclosure of …. 1.4.59

International organisation information communicated in confidence by agreement to treat as confidential …. 5.38 classification markings …. 5.39 exemption …. 1.4.25, s 33, 5.35–5.39 information as to existence …. s 25, 5.43, 5.44 refusal to confirm or deny existence …. s 25, 5.42–5.45 test of …. 5.36

time for test …. 5.37

International relations see also National security exemption confidential information from foreign government or organisation agreement to treat as confidential …. 5.38 classification markings …. 5.39 exemption …. 1.4.25, s 33, 5.35–5.39 information as to existence …. s 25, 5.43, 5.44 refusal to confirm or deny existence …. s 25, 5.42–5.45 test of …. 5.36 time for test …. 5.37 damage to meaning …. 5.25 reasonable expectation of …. 5.12–5.15, 5.24 disclosure affecting concern about …. 5.31 diminishing confidence …. 5.32 exemption of documents affecting ACT …. 1.4.27 classification markings …. 5.23 content of each document, examining …. 5.22 Cth …. 1.4.25, 1.4.26, s 33, 5.6, 5.21–5.25, 5.30–5.32 mosaic theory …. 5.33, 5.34 NSW …. 1.4.29 NT …. 1.4.28 public interest not criterion …. 1.4.26 Qld …. 1.4.30

refusal to confirm or deny existence …. s 25, 5.42–5.45 SA …. 1.4.31 Tas …. 1.4.32 Vic …. 1.4.33 WA …. 1.4.34

L Law enforcement and public safety exemption ACT …. 1.4.80 circumstances of creation …. 5.75 civil law enforcement …. 5.74 concluded investigation, not applicable to …. 1.4.75, 5.78 confidential source …. 1.4.71, 5.82–5.94 disclosure of identity …. 1.4.71, 1.4.74, 1.4.76, s 37, 5.92–5.94 enforcement or administration of law …. 5.91 implied undertaking of confidentiality …. 5.89 information as to existence …. 1.4.71, 1.4.76, s 37, 5.84 mosaic theory …. 1.4.77, 5.85 reasonableness and public interest not factors …. 5.90 scope of confidentiality …. 1.4.76, 5.87–5.90 witness protection program …. 1.4.74, s 37, 5.86 criminal law, connection with …. 5.74 Cth …. 1.4.71–1.4.79, s 37, 5.6, 5.71–5.108 evidence of how document would affect …. 1.4.78 fair trial, prejudice to …. 1.4.71, s 37, 5.71, 5.97 information as to existence of documents …. s 25, 5.43, 5.44, 5.108 investigation of breach of law …. 5.77–5.81 concluded …. 1.4.75, 5.78

conduct of …. 5.78 disclosure would benefit …. 5.81 prejudice to …. 1.4.71, s 37, 5.71, 5.77–5.81 suspended or dormant …. 5.79 whether prejudice likely, question of fact …. 5.80 investigative or compliance activities of agency …. 5.73 law enforcement procedures …. 5.98–5.103 disclosure of …. 1.4.71, s 37, 5.71, 5.98–5.103 lawful methods and procedures, meaning …. 5.99 prejudice to effectiveness of …. s 37, 5.71, 5.98 reasonable expectation …. 5.101 routine techniques not exempt …. 5.102 law, meaning …. 1.4.71, s 37, 5.72 mosaic theory …. 1.4.77, 5.85 NSW …. 1.4.82 NT …. 1.4.81 personal safety, endangering …. 5.95 application of exemption …. 5.96 Cth …. 1.4.71, 1.4.77, s 37, 5.71, 5.95, 5.96 endanger, meaning …. 1.4.73 harassment or intimidation (Qld) …. 1.4.83, 5.96 physical safety …. 1.4.71, 5.71 prejudice fair trial, to …. 1.4.71, s 37, 5.71, 5.97 investigation, to …. 1.4.71, s 37, 5.71, 5.77–5.81 law enforcement procedures, to …. 1.4.71, s 37, 5.71, 5.98–5.103 meaning …. 5.19–5.20 public safety, to methods of …. 5.104–5.107

whether likely, question of fact …. 5.80 public safety application of exemption …. 5.107 meaning …. 5.106 prejudice to methods of …. s 37, 5.71, 5.104 protection of …. 5.104–5.107 Qld …. 1.4.83, 5.96 real or material possibility …. 1.4.75 reasonably likely …. 1.4.79, 5.12–5.15, 5.76 refusal to confirm or deny existence …. s 25, 5.42–5.45 SA …. 1.4.84 Tas …. 1.4.85 Vic …. 1.4.86, 5.96 WA …. 1.4.87 witness protection program …. 1.4.74, s 37, 5.86 ‘would or could reasonably be expected to’ …. 5.12–5.15, 5.76

Legal professional privilege application of exemption …. 5.116 commercial advice excluded …. 5.125 common law …. 5.118 communications subject to …. 5.118 confidentiality …. 5.127 copies …. 5.135 document produced not losing IC review, at …. s 55Y Information Commissioner investigations …. s 84 dominant purpose …. 1.4.132

elements of …. 5.117–5.128 exemption where document subject to ACT …. 1.4.134 Cth …. 1.4.131–1.4.133, s 42, 5.6, 5.115–5.138 NSW …. 1.4.136 NT …. 1.4.135 Qld …. 1.4.137 SA …. 1.4.138 Tas …. 1.4.139 Vic …. 1.4.140 WA …. 1.4.141 legal advice …. 1.4.132, 5.123 anticipated litigation …. 5.126 concept of …. 5.125 purpose of communication …. 5.124 legal adviser-client relationship …. 5.119–5.123 determining existence of …. 5.120 in-house lawyer …. 5.120, 5.121 legal qualifications not sufficient …. 5.122 litigation privilege …. 1.4.132 operational information exception ACT …. 1.4.134 Cth …. 1.4.131, s 42, 5.136, 5.137 Vic …. 1.4.140 WA …. 1.4.141 public record, information on …. 5.128 public relations advice excluded …. 5.125 purpose of communication …. 5.124

‘real harm’ test …. 5.134 severance of privileged material …. 5.138 standard of proof …. 1.4.133 statutory test of …. 5.116 summary records …. 5.135 waiver …. 1.4.131, 5.129–5.133 avoiding unintentional …. 5.133 Cth …. 1.4.131, 1.4.133, 5.129–5.133 express or implied …. 1.4.133, 5.130 inconsistency test …. 5.131, 5.132 NSW …. 1.4.136

Library or archive documents deemed not document of an agency …. s 13 public documents, exclusion of ACT …. 1.2.25 NSW …. 1.2.26 SA …. 1.2.32, 1.4.201

M Mosaic theory national security exemption …. 5.33, 5.34 public safety exemption …. 1.4.77, 5.85

N National economy conditional exemption for documents relating to ACT …. 1.4.171

Cth …. 1.4.167–1.4.170, s 47J, 5.8 kinds of document protected …. 1.4.169, s 47J NSW …. 1.4.173 NT …. 1.4.172 Qld …. 1.4.174 SA …. 1.4.175 substantial adverse effect …. 1.4.170 Tas …. 1.4.176 Vic …. 1.4.177 WA …. 1.4.178

National security exemption ACT …. 1.4.27 ASIO informant, revealing identity of …. 5.27 categories of documents …. 5.21 classification markings …. 5.23 confidential information from foreign government or organisation agreement to treat as confidential …. 5.38 classification markings …. 5.39 exemption …. 1.4.25, s 33, 5.35–5.39 information as to existence …. s 25, 5.43, 5.44 refusal to confirm or deny existence …. s 25, 5.42–5.45 test of …. 5.36 time for test …. 5.37 content of each document, examining …. 5.22 Cth …. 1.4.25, 1.4.26, s 33, 5.6, 5.21–5.27 damage defence of the Commonwealth, to …. 5.29

meaning …. 5.25 reasonable expectation of …. 5.12–5.15, 5.24 security of the Commonwealth, to …. 5.26 defence instruction …. 5.27 defence of the Commonwealth damage to …. 5.29 meaning …. 5.28 evidence by Inspector-General of Intelligence and Security AAT review …. s 60A compliance with request …. s 55ZC IC review …. s 55ZA, 5.46 procedural matters …. s 55ZD request to give …. s 55ZB examples of claims …. 5.27 information as to existence of documents …. s 25, 5.43, 5.44 mosaic theory …. 5.33, 5.34 NSW …. 1.4.29 NT …. 1.4.28 production, power to require AAT review …. s 58E IC review …. s 55U public interest not criterion …. 1.4.26 Qld …. 1.4.30 refusal to confirm or deny existence …. s 25, 5.42–5.45 SA …. 1.4.31 security of the Commonwealth damage to, decisions regarding …. 5.26 meaning …. 5.26

Tas …. 1.4.32 Vic …. 1.4.33 WA …. 1.4.34 ‘would or could reasonably be expected to’ …. 5.12–5.15, 5.24

Norfolk Island agency, document of …. s 12 authority, definition …. s 4 Cth FOI Act applying to …. 1.1.5, s 4B enactment, definition …. s 4 government financial or property interests conditionally exempt documents …. 1.4.100, s 47D intergovernmental relations, documents affecting conditional exemption …. 1.4.35, s 47B consultation …. s 26AA protection from liability where non-compliance …. s 91 request procedure …. 1.3.112, s 26AA internal working documents …. 1.4.58 Minister definition …. s 4 official document of, exclusion …. s 12

Notice of decision access request ACT …. 1.3.100 Cth …. 1.3.98 NSW …. 1.3.102 NT …. 1.3.101 Qld …. 1.3.103

SA …. 1.3.104 Tas …. 1.3.105 Vic …. 1.3.106 WA …. 1.3.107 amendment or annotation application ACT …. 1.5.54 Cth …. 1.5.53 NSW …. 1.5.56 NT …. 1.5.55 Qld …. 1.5.57 SA …. 1.5.58 Tas …. 1.5.59 Vic …. 1.5.60 WA …. 1.5.61

O Ombudsman appeal from decision of (Tas) …. 1.6.64, 1.6.75 complaints to (Cth) amending records, limit on …. s 89J non-disclosure in report …. s 89G powers not affected …. 1.6.78, s 89F rights not affected by certificates …. s 89H definition …. s 4 exemption for complaints to (NT) …. 1.4.201 Information Commissioner transferring investigations to …. s 74 review of decisions by ACT …. 1.6.79

Cth …. 1.6.78, s 89F NSW …. 1.6.81 NT, no provision for …. 1.6.80 Qld, no provision for …. 1.6.82 SA …. 1.6.51, 1.6.83 Tas …. 1.6.52, 1.6.64, 1.6.84 Vic, no provision for …. 1.6.85 WA, no provision for …. 1.6.86

P Parliamentary Budget Office documents AAT review, production at …. s 58E confidential request …. 5.161 document revealing …. 5.162 exemption …. s 45A, 5.6, 5.158–5.166 documents excluded …. 5.163–5.166 documents included …. 5.159–5.162 full or partial copy …. 5.160 IC review, production at …. s 55U information as to existence of …. s 25, 5.43, 5.44, 5.167

Parliamentary privilege briefings …. 5.179 close connection …. 5.178 constitutional provisions …. 5.176 definition …. 5.175 exemption where disclosure could breach ACT …. 1.4.192

Cth …. 1.4.191, s 46, 5.6, 5.168 limited time, for …. 5.180 NSW …. 1.4.194 NT …. 1.4.193 Qld …. 1.4.195 SA …. 1.4.196 Tas …. 1.4.197 Vic …. 1.4.198 WA …. 1.4.199 nature of …. 5.169 protection of …. 5.169 rules and orders relating to …. 5.177 scope of provision …. 5.170

Personal information access after review or appeal opportunities run out …. 1.3.117, s 27A amendment see Amendment of records annotation see Annotation of records conditionally exempt documents access by qualified person …. 1.4.119, s 47F ACT …. 1.4.123 Cth …. 1.4.118–1.4.122, s 47F, 5.8 information protected …. 1.4.121 NSW …. 1.4.125 NT …. 1.4.124 privacy, protection of …. 1.4.122 public interest test not applicable …. 1.4.122 Qld …. 1.4.126

SA …. 1.4.127 Tas …. 1.4.128 Vic …. 1.4.129 WA …. 1.4.130 conditions for access …. 1.3.117 deceased person …. 1.3.116 definition …. s 4 edited copies, access to …. s 27A exemption contention …. 1.3.116 procedure for access requests ACT …. 1.3.135 consultation …. s 27A Cth …. 1.3.116–1.3.118, s 27A NSW …. 1.3.137 NT …. 1.3.136 protection from liability where non-compliance …. s 91 Qld …. 1.3.138 SA …. 1.3.139 submissions, opportunity to make …. s 27A Tas …. 1.3.140 Vic …. 1.3.141 WA …. 1.3.142 qualified person access by …. 1.4.119, s 47F definition …. 1.4.119, s 47F secrecy exemption, whether applicable …. 1.4.90 third parties, information about …. 1.4.91 unreasonable, disclosure would be

determining …. 1.4.120 exemption where …. 1.4.118

Personal privacy see Personal information Personal safety see Law enforcement and public safety exemption Personnel records request for access …. 1.2.76, s 15A

Prescribed authority see Agency or public authority Presumption in favour of disclosure NSW …. 1.2.13, 1.4.19 Qld …. 1.2.14

Privilege breach of see Contempt or breach of privilege legal professional see Legal professional privilege

Processing period access request ACT …. 1.2.79 Cth …. 1.2.75, s 15 extension …. ss 15–15AB NSW …. 1.2.85 NT …. 1.2.82 Qld …. 1.2.87 SA …. 1.2.89 Tas …. 1.2.91 Vic …. 1.2.93 WA …. 1.2.95 amendment or annotation application

ACT …. 1.5.54 Cth …. 1.5.53 NSW …. 1.5.56 NT …. 1.5.55 Qld …. 1.5.57 SA …. 1.5.58 Tas …. 1.5.59 Vic …. 1.5.60 WA …. 1.5.61 extension of …. s 15 agreement, with …. s 15AA charges …. s 31 foreign entity, to consult …. s 15 voluminous request …. s 15AB

Protection from civil liability Information Commissioner complaint to, resulting from …. s 89E information given in investigation by …. s 85 information given in review by …. s 55Z Minister or officer of agency …. s 90 defamation, breach of confidence or copyright infringement, for …. s 90 non-compliance with requirements …. s 91

Protection from criminal liability Minister or officer of agency …. s 92

Public authority see Agency or public authority Public documents exclusion of

ACT …. 1.2.25 NSW …. 1.2.26 SA …. 1.2.32 WA …. 1.2.35

Public interest application containing submissions about (NSW) …. 1.2.84 benefit to community as a whole …. 1.4.203 business affairs, disclosure in …. 1.4.46 conditional exemption see Conditionally exempt documents disclosure contrary to …. 1.4.12, 1.4.13 Commonwealth–state relations, documents relating to …. 1.3.109 exemption where see Conditionally exempt documents overriding right to access (NSW) …. 1.2.12, 1.2.28, 1.4.19 presumption in favour of disclosure unless (NSW) …. 1.2.13 factors favouring access in …. 1.4.15, s 11B overriding public interest test conditional exemptions see Conditionally exempt documents Pt IV Div 2 exemptions not subject to …. 5.7 reasons for access decision to include …. s 26, 5.9

Public register excluded documents ACT …. 1.2.25 NT …. 1.2.26

Public safety see Law enforcement and public safety exemption Q Queensland Civil and Administrative Tribunal (QCAT)

review by …. 1.6.62 appeal to Court of Appeal …. 1.6.73

Queensland Integrity Commissioner excluded documents …. 1.2.31

R Record amendment see Amendment of records annotation see Annotation of records definition NSW …. 1.2.61 NT …. 1.2.59 legislation referring to NSW …. 1.2.61 NT …. 1.2.59

Refusal of access access refusal decision definition …. 1.6.3, s 53A internal review see Internal review ACT …. 1.3.78 circumstances where permitted Cth …. 1.3.69–1.3.77, s 24 practical refusal reason …. 1.3.70, s 24AA request consultation process …. s 24AB states and territories …. 1.3.78–1.3.86 decision not made within time deemed …. s 15AC document non-existent …. 1.3.75, s 24A

information as to existence …. s 25, 5.43, 5.44 document not received …. s 24A document unable to be found …. 1.3.75, s 24A claimed inability actually refusal …. 1.3.76 Cth …. 1.3.75, 1.3.76 information as to existence …. s 25, 5.43, 5.44 NSW …. 1.3.81 remission for further searches …. 1.3.76 thorough or reasonable search …. 1.3.75, 1.3.81 WA …. 1.3.86 interference with performance of functions Cth …. 1.3.33, 1.3.70 NT …. 1.3.79 internal review see Internal review notice of ACT …. 1.3.100 Cth …. 1.3.98 NSW …. 1.3.102 NT …. 1.3.101 Qld …. 1.3.103 SA …. 1.3.104 Tas …. 1.3.105 Vic …. 1.3.106 WA …. 1.3.107 NSW …. 1.3.80, 1.3.81 NT …. 1.3.79 particular form, in ACT …. 1.3.36

copyright infringement …. 1.3.33 Cth …. 1.3.33, 1.3.34, s 20 detrimental to document …. 1.3.33 giving in another form …. 1.3.34, s 20 interference with performance of functions …. 1.3.33 NSW …. 1.3.39 NT …. 1.3.37 Qld …. 1.3.41 SA …. 1.3.43 Tas …. 1.3.44 Vic …. 1.3.45 WA …. 1.3.46 practical refusal reason definition …. 1.3.70, s 24AA refusal for …. 1.3.69, PR 2, s 24 precedent …. 1.3.77, PR 2 internal working documents …. 1.4.61, PR 3 procedure ACT …. 1.3.100 Cth …. 1.3.98 NSW …. 1.3.102 NT …. 1.3.101 Qld …. 1.3.103 SA …. 1.3.104 Tas …. 1.3.105 Vic …. 1.3.106 WA …. 1.3.107

purpose of provisions …. 1.3.72 Qld …. 1.3.82 reasons for decision …. 1.6.6, s 26, 5.4, 5.45 public interest factors …. s 26, 5.9 relevant considerations …. 1.3.71 repeat or vexatious request (Tas) …. 1.3.84 request consultation process definition …. s 24AB extension of consultation period …. s 24AB refusal of access to allow …. s 24 requirement to notify …. s 24AB response would be exempt document ACT …. 1.3.90 Cth …. 1.3.87–1.3.89 NSW …. 1.3.92 NT …. 1.3.91 Qld …. 1.3.93 SA …. 1.3.94 Tas …. 1.3.95 Vic …. 1.3.96 WA …. 1.3.97 review of decision internal see Internal review SA …. 1.3.83 Tas …. 1.3.84 unreasonable diversion of resources Cth …. 1.3.70, 1.3.73 NSW …. 1.3.80

WA …. 1.3.86 unreasonably voluminous request …. 1.3.72 ability to process other requests impaired …. 1.3.74 strict reading of provision …. 1.3.76 Vic …. 1.3.85 WA …. 1.3.86 withholding information as to existence of document …. s 25, 5.43, 5.44 law enforcement documents …. 5.108 Parliamentary Budget Office documents …. 5.167

Request for access acknowledgment of receipt …. 1.2.75 ACT …. 1.2.79 assistance from agency Cth …. 1.2.74, s 15 Tas …. 1.2.91 Vic …. 1.2.93 WA …. 1.2.95 business documents see Business, commercial or professional documents charges …. s 29 decision to impose …. s 29 extended period for processing request …. s 31 Commonwealth-state relations, documents relating to ACT …. 1.3.119 application of s 26A(1) …. 1.3.109 consultation arrangements …. 1.3.109, s 26A Cth …. 1.3.108–1.3.112 decision to grant access …. 1.3.108, s 26A

edited copies, access to …. s 26A Norfolk Island …. 1.3.112, s 26AA notice to state and applicant …. 1.3.110 NSW …. 1.3.121 NT …. 1.3.120 protection from liability where non-compliance …. s 91 public interest, access contrary to …. 1.3.109 Qld …. 1.3.122 SA …. 1.3.123 state-originated information …. 1.3.109, s 26A Tas …. 1.3.124 Vic …. 1.3.125 WA …. 1.3.126 computer, information stored on ACT …. 1.3.12 Cth …. 1.3.11, s 17 NSW …. 1.3.14 NT …. 1.3.13 Qld …. 1.3.15 SA …. 1.3.16 Tas …. 1.3.17 Vic …. 1.3.18 WA …. 1.3.19 Cth …. 1.2.73–1.2.78, s 15 decision not made within time, deemed refusal …. s 15AC decision on, who makes ACT …. 1.3.61 Cth …. 1.3.59, 1.3.60, s 23

NSW …. 1.3.63 NT …. 1.3.62 Qld …. 1.3.64 SA …. 1.3.65 Tas …. 1.3.66 Vic …. 1.3.67 WA …. 1.3.68 extension of time …. s 15 agreement, with …. s 15AA charges …. s 31 foreign entity, to consult …. s 15 voluminous request …. s 15AB guidance on …. 1.2.78 manner of sending …. 1.2.74 non-conformance with requirements …. 1.2.74 NSW …. 1.2.83–1.2.85 NT …. 1.2.80–1.2.82 personnel records …. 1.2.76, s 15A precedent …. 1.2.77, PR 1 processing period ACT …. 1.2.79 Cth …. 1.2.75, s 15 extension …. ss 15–15AB NSW …. 1.2.85 NT …. 1.2.82 Qld …. 1.2.87 SA …. 1.2.89

Tas …. 1.2.91 Vic …. 1.2.93 WA …. 1.2.95 Qld …. 1.2.86–1.2.87 refusal of see Refusal of access requirements ACT …. 1.2.79 Cth …. 1.2.73, s 15 NSW …. 1.2.83 NT …. 1.2.80 Qld …. 1.2.86 SA …. 1.2.88 Tas …. 1.2.90 Vic …. 1.2.92 WA …. 1.2.94 review of decision see Review of decisions SA …. 1.2.88–1.2.89 succinct and well defined …. 1.2.72 Tas …. 1.2.90–1.2.91 transfer to other agency ACT …. 1.3.3 Cth …. 1.3.1, 1.3.2 deemed date of receipt …. 1.3.2 NSW …. 1.3.5 NT …. 1.3.4 Qld …. 1.3.6 SA …. 1.3.7 Tas …. 1.3.8

Vic …. 1.3.9 WA …. 1.3.10 Vic …. 1.2.92–1.2.93 voluminous request ability to process other requests impaired …. 1.3.74 extension of time …. s 15AB refusal …. 1.3.72, 1.3.74 strict reading of provision …. 1.3.76 WA …. 1.2.94–1.2.95

Research conditional exemption for documents relating to ACT …. 1.4.159 Cth …. 1.4.158, s 47H, Sch 4, 5.8 NSW …. 1.4.161 NT …. 1.4.160 Qld …. 1.4.162 SA …. 1.4.163 specified institutions …. s 47H, Sch 4 Tas …. 1.4.164 Vic …. 1.4.165 WA …. 1.4.166

Review of decisions administrative tribunal, by AAT see Administrative Appeals Tribunal review ACAT (ACT) …. 1.6.47, 1.6.59 ADT (NSW) …. 1.6.61 appeal from see Appeals

QCAT …. 1.6.62 VCAT …. 1.6.65 appeals see Appeals external ACT …. 1.6.47, 1.6.59 IC review see Information Commissioner (IC) review NSW …. 1.6.49, 1.6.61 NT …. 1.6.48, 1.6.60 Qld …. 1.6.50, 1.6.62 SA …. 1.6.51, 1.6.63 Tas …. 1.6.52, 1.6.64 Vic …. 1.6.53, 1.6.65 WA …. 1.6.54, 1.6.66 Information Commissioner see Information Commissioner (IC) review internal review see Internal review Ombudsman ACT …. 1.6.79 Cth …. 1.6.78 NSW …. 1.6.81 SA …. 1.6.51, 1.6.83 Tas …. 1.6.52, 1.6.64, 1.6.84 run out (of opportunities), meaning …. s 4

Right of access to information abuse of (SA) …. 1.3.83 Cth …. 1.1.5, s 11 reasons, not affected by …. 1.2.2

Royal Commission

excluded documents …. s 13 exempt persons and bodies …. s 7

S Secrecy exemption ACT …. 1.4.92 Cth …. 1.1.22, 1.4.88–1.4.91, s 38, Sch 3, 5.6, 5.109–5.114 disclosure in course of duty …. 5.114 disclosure prohibited under enactment …. 1.1.22, 1.4.89 limits on use of …. 5.111 NSW …. 1.4.94 NT …. 1.4.93 personal information …. 1.4.90, 1.4.91, 5.112, 5.113 purpose of …. 5.110 Qld …. 1.4.95 SA …. 1.4.96 secrecy provisions of enactments …. s 38, Sch 3, 5.109 specific recipient prohibited …. 1.1.23 specified enactments …. s 38, Sch 3, 5.109 states and territories …. 1.1.24 Tas …. 1.4.97 third parties, information about …. 1.4.91 trade secrets see Trade secrets Vic …. 1.2.34, 1.4.98 WA …. 1.4.99

Subpoena FOI laws substituting for …. 1.1.9

Supreme Court appeals ACT …. 1.6.70 NSW …. 1.6.72 NT …. 1.6.60, 1.6.71 Tas …. 1.6.64, 1.6.75 Vic …. 1.6.76 WA …. 1.6.66, 1.6.77

T Trade secrets business affairs exemption not applicable …. 1.4.144, 5.8 consultation with relevant parties …. 5.192 definition …. 5.184 exempt documents …. 1.4.144, s 47, 5.6, 5.181–5.187 exceptions …. s 47, 5.182, 5.183 factor in determining …. 5.186 non-technical information …. 5.187 test of …. 5.185

Transfer of requests access request ACT …. 1.3.3 Cth …. 1.3.1, 1.3.2, s 16 deemed date of receipt …. 1.3.2 NSW …. 1.3.5 NT …. 1.3.4 Qld …. 1.3.6 SA …. 1.3.7

Tas …. 1.3.8 Vic …. 1.3.9 WA …. 1.3.10 amendment or annotation application ACT …. 1.5.45 Cth …. 1.5.44, s 51C NSW …. 1.5.47 NT …. 1.5.46 Qld …. 1.5.48 SA …. 1.5.49 Tas …. 1.5.50 Vic …. 1.5.51 WA …. 1.5.52

Transport accident inquiries exempt documents (NSW) …. 1.4.201

Tribunals FOI Act applicable …. 1.1.7, s 6, Sch 1 review of decisions by AAT see Administrative Appeals Tribunal review ACAT (ACT) …. 1.6.47, 1.6.59 ADT (NSW) …. 1.6.61 appeal from see Appeals QCAT …. 1.6.62 VCAT …. 1.6.65

V Vexatious applicant declaration

access action …. s 89L definition …. s 89K effect …. s 89M grounds for …. s 89L Information Commissioner may make …. s 89K review by AAT …. s 89N

Victorian Civil and Administrative Tribunal (VCAT) review of decisions …. 1.6.65 appeal to Supreme Court …. 1.6.76

Voluminous requests extension of time …. s 15AB refusal where unreasonably voluminous …. 1.3.72 ability to process other requests impaired …. 1.3.74 strict reading of provision …. 1.3.76