Freedom of Information Amendment (Reform) Act 2010 (Cth)

Freedom of Information Amendment (Reform) Act 2010

Act No. 51 of 2010 as amended

This compilation was prepared on 29 November 2012

taking into account amendments up to Act No. 136 of 2012

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Parliamentary Counsel, Canberra

Contents

An Act to amend the law relating to access to information, and for related purposes

1Short title [see Note 1]

This Act may be cited as the Freedom of Information Amendment (Reform) Act 2010.

2Commencement

(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.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	31 May 2010
2. Schedule 1	Immediately after the 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.	1 November 2010
3. Schedule 2	The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act 2010 commences. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all.	1 May 2011
4. Schedule 3, items 1 to 14	Immediately after the 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.	1 November 2010
5. Schedule 3, item 15	The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act 2010 commences. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all.	1 May 2011
6. Schedule 3, items 16 to 40	Immediately after the 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.	1 November 2010
7. Schedules 4 to 7	Immediately after the 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.	1 November 2010

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Objects

Freedom of Information Act 1982

Section 3

Repeal the section, substitute:

3Objects—general

(1)
The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

3AObjects—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.

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.

Section 14

Repeal the section.

Schedule 2Publication of information

Freedom of Information Act 1982

Subsection 4(1)

Insert:
operational information has the meaning given by section 8A.

Subsection 4(9)

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

Part II

Repeal the Part, substitute:

Part II—Information publication scheme

Division 1—Guide to this Part

7AInformation 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.

Division 2—Information to be published

8Information 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 appointments of officers of the agency that are made under Acts (other than APS employees within the meaning of the Public Service Act 1999);
(e)
the information in annual reports prepared by the agency that are laid before the Parliament;
(f)
details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments may be made;
(g)
information in documents to which the agency routinely gives access in response to requests under Part III (access to documents), except information of the following kinds:
(i)
personal information about any individual, if it would be unreasonable to publish the information;
(ii)
information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
(iii)
other information of a kind determined by the Information Commissioner under subsection (3), if it would be unreasonable to publish the information;
(h)
information held by the agency that is routinely provided to the Parliament in response to requests and orders from the Parliament;
(i)
contact details for an officer (or officers) who can be contacted about access to the agency’s information or documents under this Act;
(j)
the agency’s operational information (see section 8A).
Note: If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10).
(3)
The Information Commissioner may, by legislative instrument, make a determination for the purposes of subparagraph (2)(g)(iii).
Other information
(4)
The agency may publish other information held by the agency.
Functions and powers
(5)
This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment.
Note 1: See section 8C for restrictions on the requirement to publish this information.
Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).

8AInformation 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.

8BInformation 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.

8CInformation 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.

8DInformation 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.
Charges
(4)
The agency may impose a charge on a person for accessing the information only if:
(a)
the person does not directly access the information by downloading it from the website (or another website); and
(b)
the charge is to reimburse the agency for specific reproduction costs, or other specific incidental costs, incurred in giving the person access to that particular information.
(5)
If there is a charge for accessing the information, the agency must publish details of the charge in the same way as the information is published under this section.
Note 1: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).
Note 2: After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C).

8EInformation 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

8FReview 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.

9Review 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: 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.
Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).

Division 4—Guidelines

9AFunctions 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

10Unpublished 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).
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.

10AWho 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.

Saving—unpublished information

Section 10 of the Freedom of Information Act 1982, as in force immediately before the commencement of item 3 (the commencement time), continues in force at and after the commencement time in relation to:
(a)
a document relating to a function of an agency, required to be made available in accordance with section 9 of that Act before the commencement time; and
(b)
conduct engaged in by a person before the commencement time that is relevant to the performance of that function.
Note: Item 3 commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences.

Schedule 3ExemptionsPart 1Open access period amendments

Archives Act 1983

Subsection 3(1)

Insert:
open access period, in relation to a record, has the meaning given by the following provisions:
(a)
for a Cabinet notebook—section 22A;
(b)
for a record containing Census information—section 22B;
(c)
for any other record—subsection (7) of this section.

Subsection 3(7)

Repeal the subsection (including the note), substitute:
(7)
For the purposes of this Act, subject to sections 22A and 22B, work out when a record is in the open access period in accordance with the following table:

Open access period for records
Item	If the record came into existence in any of the following years (ending on 31 December):	the record is in the open access period on and after the following day:
1	a year (the creation year) before 1980	1 January in the year that is 31 years after the creation year. Example: A record that came into existence in the year 1979 is in the open access period on and after 1 January 2010.
2	1980 or 1981	1 January 2011.
3	1982 or 1983	1 January 2012.
4	1984 or 1985	1 January 2013.
5	1986 or 1987	1 January 2014.
6	1988 or 1989	1 January 2015.
7	1990 or 1991	1 January 2016.
8	1992 or 1993	1 January 2017.
9	1994 or 1995	1 January 2018.
10	1996 or 1997	1 January 2019.
11	1998 or 1999	1 January 2020.
12	2000	1 January 2021.
13	a year (the creation year) after 2000	1 January in the year that is 21 years after the creation year. Example: A record that came into existence in the year 2001 is in the open access period on and after 1 January 2022.

Note: Cabinet notebooks and records containing Census information have different open access periods (see sections 22A and 22B).

Subsection 22A(1)

Repeal the subsection, substitute:
(1)
For the purposes of this Act, work out when a Cabinet notebook is in the open access period in accordance with the following table:

Open access period for Cabinet notebooks
Item	If the Cabinet notebook came into existence in any of the following years (ending on 31 December):	the Cabinet notebook is in the open access period on and after the following day:
1	a year (the creation year) before 1960	1 January in the year that is 51 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1959 is in the open access period on and after 1 January 2010.
2	1960, 1961 or 1962	1 January 2011.
3	1963, 1964 or 1965	1 January 2012.
4	1966, 1967 or 1968	1 January 2013.
5	1969, 1970 or 1971	1 January 2014.
6	1972, 1973 or 1974	1 January 2015.
7	1975, 1976 or 1977	1 January 2016.
8	1978, 1979 or 1980

1 January 2017.
9	1981, 1982 or 1983	1 January 2018.
10	1984, 1985 or 1986	1 January 2019.
11	1987, 1988 or 1989	1 January 2020.
12	1990	1 January 2021.
13	a year (the creation year) after 1990	1 January in the year that is 31 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1991 is in the open access period on and after 1 January 2022.

Note: Records that are not Cabinet notebooks have different open access periods (see subsection 3(7) (general records) and section 22B (records containing Census information)).

Paragraph 26(1)(a)

Omit “25 years”, substitute “15 years”.

Paragraph 27(3)(b)

Omit “25 years”, substitute “15 years”.

Subsection 30(2)

Omit “25 years”, substitute “15 years”.

Part 2Main exemption amendments

Freedom of Information Act 1982

Subsection 4(1)

Insert:
Cabinet includes a committee of the Cabinet.
8
Subsection 4(1) (definition of Cabinet notebook)
Omit “or of a committee of the Cabinet, being notes”, substitute “, if the notes were”.

Subsection 4(1)

Insert:
conditionally exempt: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Subsection 4(1) (definition of edited copy)

Repeal the definition, substitute:
edited copy has the meaning given by section 22 (access to edited copies with exempt or irrelevant matter deleted).
11
Subsection 4(1) (paragraph (a) of the definition of exempt document)
Repeal the paragraph, substitute:
(a)
a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or

Subsection 4(1)

Insert:
run out: all of a person’s opportunities for review or appeal in relation to an access grant decision have run out when:
(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 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).

At the end of section 4

Add:
(10)
To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and:
(a)
a foreign government or an authority of a foreign government; or
(b)
an international organisation.
Note: Section 33 deals with documents affecting national security, defence or international relations.

After section 11

Insert:

11AAccess 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) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a)
a conditionally exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).

11BPublic 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;
(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.

Before section 12

Insert:

11CPublication 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).
(2)
The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph (1)(c).
Publication
(3)
The agency, or the Minister, must publish the information to members of the public generally on a website by:
(a)
making the information available for downloading from the website; or
(b)
publishing on the website a link to another website, from which the information can be downloaded; or
(c)
publishing on the website other details of how the information may be obtained.
(4)
The agency may impose a charge on a person for accessing the information only if:
(a)
the person does not directly access the information by downloading it from the website (or another website); and
(b)
the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.
(5)
If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section.
Time limit for publication
(6)
The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.
(7)
In this section:
working day means a day that is not:
(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.

Section 18

Repeal the section.

Section 22

Repeal the section, substitute:

22Access to edited copies with exempt or irrelevant matter deleted

Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(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.

Subsections 25(1) and (2)

Omit “or 33A” (wherever occurring).

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

Add “and”.

After paragraph 26(1)(a)

Insert:
(aa)
in the case of a decision to refuse to give access to a conditionally exempt document—include in those reasons the public interest factors taken into account in making the decision; and
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Sections 26A, 27, 27A and 28

Repeal the sections, substitute:

26AConsultation—documents affecting Commonwealth‑State relations

Scope
(1)
This section applies if:
(a)
arrangements have been entered into between the Commonwealth and a State about consultation under this section; and
(b)
a request is made to an agency or Minister for access to a document that:
(i)
originated with, or was received from, the State or an authority of the State; or
(ii)
contains information (State‑originated information) that originated with, or was received from, the State or an authority of the State; and
(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); and
(ii)
access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Consultation required
(2)
The agency or Minister must not decide to give the applicant access to the document unless consultation has taken place between the Commonwealth and the State in accordance with the arrangements.
Decision to give access
(3)
If, after such consultation has taken place, the agency or Minister decides to give the applicant access to the document, the agency or Minister must give written notice of the decision to both of the following:
(a)
the State;
(b)
the applicant.
Access not to be given until review or appeal opportunities have run out
(4)
However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the State for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Edited copies and State‑originated information
(5)
This section applies:
(a)
in relation to an edited copy of a document—in the same way as it applies to the document; and
(b)
in relation to a document containing State‑originated information—to the extent to which the document contains such information.

27Consultation—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).
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.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(8)
Subsections (6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph (4)(a).
Edited copies and business information
(9)
This section applies:
(a)
in relation to an edited copy of a document—in the same way as it applies to the document; and
(b)
in relation to a document containing business information—to the extent to which the document contains such information.

27AConsultation—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;
(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: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(7)
Subsections (5) and (6) do not apply unless the person concerned makes a submission in support of the exemption contention as allowed under paragraph (3)(a).
Edited copies and personal information
(8)
This section applies:
(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.

Before section 32

Insert:

Division 1—Preliminary

31AAccess to exempt and conditionally exempt documents

The following table summarises how this Act applies to exempt documents and documents that are conditionally exempt:

How this Act applies to exempt and conditionally exempt documents
Item	If …	then …	because of …
1	a document is an exempt document under Division 2 (exemptions) or under paragraph (b) or (c) of the definition of exempt document in subsection 4(1)	access to the document is not required to be given	subsection 11A(4).
2	a document is a conditionally exempt document under Division 3 (public interest conditional exemptions)	access to the document is required to be given, unless it would be contrary to the public interest	subsection 11A(5) (see also section 11B (public interest factors)).
3	a document is an exempt document as mentioned in item 1, and also a conditionally exempt document under Division 3	access to the document is not required to be given	subsections 11A(4) and (6), and section 32 (interpretation).
4	access to a document is refused because it contains exempt matter, and the exempt matter can be deleted	(a) an edited copy deleting the exempt matter must be prepared (if practicable); and (b) access to the edited copy must be given;	section 22.
5	a document is an exempt document because of any provision of this Act	access to the document may be given apart from under this Act	section 3A (objects—information or documents otherwise accessible).

31BExempt documents for the purposes of this Part

A document is exempt for the purposes of this Part if:
(a)
it is an exempt document under Division 2; or
(b)
it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Note 1: A document is an exempt document for the purposes of this Act (see subsection 4(1)) if:
(a) it is exempt under this section; or
(b) it is exempt because of section 7 (exemption of certain persons and bodies); or
(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.
Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Section 32

After “exempt documents” (wherever occurring), insert “, or are conditionally exempt”.

After section 32

Insert:

Division 2—Exemptions

At the end of section 33

Add:
Note: See also subsection 4(10).

Sections 33A to 36

Repeal the sections, substitute:

34Cabinet documents

General rules
(1)
A document is an exempt document if:
(a)
both of the following are satisfied:
(i)
it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii)
it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b)
it is an official record of the Cabinet; or
(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.

Sections 39, 40 and 41

Repeal the sections.

Subsection 42(2)

Repeal the subsection, substitute:
(2)
A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
Note: For operational information, see section 8A.

Sections 43, 43A and 44

Repeal the sections.

Subsection 45(2)

Omit “any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document”, substitute “a document to which subsection 47C(1) (deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)), that is”.

Subsection 45(2)

After “unless the disclosure”, insert “of the document”.

Section 47

Repeal the section, substitute:

47Documents 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.
(3)
A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority.

At the end of Part IV

Add:

Division 3—Public interest conditional exemptions

47BPublic interest conditional exemptions—Commonwealth‑State relations

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.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47CPublic interest conditional exemptions—deliberative processes

General rule
(1)
A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(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: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47DPublic interest conditional exemptions—financial or property interests of the Commonwealth

A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47EPublic 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 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).

47FPublic 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 first‑mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‑being, and, without limiting the generality of the foregoing, includes any of the following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47GPublic interest conditional exemptions—business

(1)
A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a)
would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b)
could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2)
Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
(3)
Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a)
by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(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 or a State or by a local government authority.
(5)
For the purposes of subsection (1), information is not taken to concern a person in respect of the person’s professional affairs merely because it is information concerning the person’s status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47HPublic interest conditional exemptions—research

A document is conditionally exempt if:
(a)
it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4; and
(b)
disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

47JPublic 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 section 22 of the Acts Interpretation Act 1901). Examples of a body politic include the government of the Commonwealth, a State, a Territory or a foreign country.
(2)
For the purposes of subsection (1), a substantial adverse effect on Australia’s economy includes a substantial adverse effect on:
(a)
a particular sector of the economy; or
(b)
the economy of a particular region of Australia.
(3)
The documents to which subsection (1) applies include, but are not limited to, documents containing matter relating to any of the following:
(a)
currency or exchange rates;
(b)
interest rates;
(c)
taxes, including duties of customs or of excise;
(d)
the regulation or supervision of banking, insurance and other financial institutions;
(e)
proposals for expenditure;
(f)
foreign investment in Australia;
(g)
borrowings by the Commonwealth, a State or an authority of the Commonwealth or of a State.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Schedule 4

Omit “Section 43A”, substitute “Section 47H”.

Part 3Other exemption amendments

Archives Act 1983

Paragraph 33(1)(b)

Repeal the paragraph, substitute:
(b)
information or matter:
(i)
that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity); and

(ii)
which the foreign entity advises the Commonwealth entity is still confidential; and
(iii)
the confidentiality of which it would be reasonable to maintain;

Paragraph 50A(2)(b)

Repeal the paragraph, substitute:
(b)
whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making the record available for public access:
(i)
the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);
(ii)
the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

Paragraph 50A(3)(b)

Repeal the paragraph, substitute:
(b)
whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making that part, or a copy of that part, of the record available for public access:
(i)
the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);
(ii)
the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

Privacy Act 1988

Subsection 34(1)

Omit “or 33A,”.

Part 4Application provisions

Application—Part 2

An amendment made by an item in Part 2 applies in relation to requests for access made under section 15 of the Freedom of Information Act 1982 that are received at or after the commencement of that item.

Application—items 35, 36 and 37

The amendments made by items 35, 36 and 37 apply for the purposes of determining whether access, or an extension of partial access, to a record referred to in section 31 of the Archives Act 1983 will be given in accordance with an application made under section 40 of that Act that is received by the Archives at or after the commencement of those items.

Schedule 4Information Commissioner amendmentsPart 1Main amendments

Freedom of Information Act 1982

Subsection 4(1)

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

Subsection 4(1)

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

Subsection 4(1)

Insert:
action, if the action is taken by a person or agency, has the same meaning as in the Ombudsman Act 1976.
Note: See subsections 3(2) to (7) of the Ombudsman Act 1976.

Subsection 4(1)

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

Subsection 4(1)

Insert:
authorised person has the meaning given by section 77.

Subsection 4(1)

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

Subsection 4(1)

Insert:
engage in conduct means:
(a)
do an act; or
(b)
omit to do an act.

Subsection 4(1)

Insert:
IC review has the meaning given by section 54G.

Subsection 4(1)

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

Subsection 4(1)

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

Subsection 4(1)

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

Subsection 4(1)

Insert:
implementation notice has the meaning given by section 89.

Subsection 4(1)

Insert:
Information Commissioner has the meaning given by the Australian Information Commissioner Act 2010.

Subsection 4(1)

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

Subsection 4(1)

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

Subsection 4(1)

Insert:
investigation recommendations has the meaning given by section 88.

Subsection 4(1)

Insert:
investigation results has the meaning given by section 87.

Subsection 4(1)

Insert:
respondent agency has the meaning given by subsections 69(2) and 70(2).

Subsection 4(1)

Insert:
review parties has the meaning given by section 55A.

Subsection 4(1)

Insert:
vexatious applicant declaration has the meaning given by section 89K.

Subsection 12(1)

Omit “(1)”.

Subsections 12(2) to (4)

Repeal the subsections.

Subsection 21(3)

Repeal the subsection.

Subparagraph 26(1)(c)(ii)

Omit “Ombudsman”, substitute “Information Commissioner”.

Paragraph 26(1)(c)

Omit “review under section 54”, substitute “internal review (Part VI) and IC review (Part VII)”.

Paragraph 29(9)(b)

Omit “Ombudsman”, substitute “Information Commissioner”.

Subsection 29(9)

Omit “review under section 54”, substitute “internal review (Part VI) and IC review (Part VII)”.

Section 31

Repeal the section, substitute:

31Decision 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).

After section 51D

Insert:

51DADecision 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.
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).

Part VI (heading)

Repeal the heading, substitute:

Part VI—Internal review of decisions

Before section 53

Insert:

52Internal 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.

Section 53

Omit “Part”, substitute “Act”.

Section 53

Omit “, 33A, 34 or 35”, substitute “or 34”.

Sections 54 to 57

Repeal the sections, substitute:

53AWhat 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.
Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC).

53BWhat is an access grant decision?

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 (item 1), 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 ...	the access grant decision is ...
1	consultation with a State under section 26A (documents affecting Commonwealth‑State relations) is required	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47B (Commonwealth‑State relations); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
2	section 27 (business documents) applies in relation to business information in the document	a decision of an agency or Minister to give access to the document (or an edited copy 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.
3	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
4	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

53CInternal review—who is an affected third party?

The following table has effect:

Who is an affected third party?
Item	If, in relation to a request for access to a document ...	the affected third party for the document is ...
1	consultation with a State under section 26A (documents affecting Commonwealth‑State relations) is required	the State.
2	section 27 (business documents) applies in relation to business information in the document	the person or organisation concerned (within the meaning of section 27).
3	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person	the person.
4	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person	the legal personal representative of the deceased person.

54Internal 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.

54AInternal review—access grant decision

(1)
This section applies if an access grant decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister.
(2)
The affected third party for the document may apply under this Part for the review (the internal review) of the access grant decision.
Note: For affected third party, see section 53C.

54BInternal 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.

54CInternal 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.

54DInternal 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:
(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).

54EInternal review—decisions to which this Part does not apply

This Part does not apply in relation to:
(a)
a decision on internal review; or
(b)
a decision in relation to the provision of access to a document upon a request that is taken to have been made under section 15AC or 51DA.

Part VII—Review by Information Commissioner

Division 1—Guide to this Part

54FReview 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).

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.

15ACDecision 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.
(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).

Paragraph 17(1)(a)

Omit “of the kind described in subsection 24(1)”, substitute “in relation to which a practical refusal reason exists”.

Section 24

Repeal the section, substitute:

24Power 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.

24AAWhen does a practical refusal reason exist?

(1)
For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a)
the work involved in processing the request:
(i)
in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii)
in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister’s functions;
(b)
the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2)
Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a)
identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b)
deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i)
examining the document; or
(ii)
consulting with any person or body in relation to the request;
(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
(c)
any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.

24ABWhat 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.
(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.

Section 24A

Repeal the section, substitute:

24ARequests 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.

Subsection 29(1)

Omit “(not being an application fee)”.

Section 30A

Repeal the section.

Section 92A

Repeal the section.

Paragraph 94(2)(a)

Omit “the applicant is included in one class of applicant or another class of applicant or according to whether”.
38
Division 1 of Part II of Schedule 2 (after the item relating to the Commonwealth Scientific and Industrial Research Organisation)
Insert:

Department of Defence, in relation to documents in respect of:
(a)
the collection, reporting or analysis of operational intelligence; or
(b)
special access programs, under which a foreign government provides restricted access to technologies.

39
Division 1 of Part II of Schedule 2 (the item relating to the Federal Airports Corporation)
Repeal the item.

Part 2Application provisions

Application—items 2, 3, 7, 16, 19 and 33

The amendments made by items 2, 3, 7, 16, 19 and 33 apply in relation to contracts entered into at or after the commencement of those items.
41
Application—items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39
The amendments made by items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39 apply in apply in relation to the following:
(a)
requests for access made under section 15 of the Freedom of Information Act 1982 that are received at or after the commencement of those items;
(b)
applications under section 48 of that Act that are received at or after the commencement of those items.

Part 3Amendment of other Acts

Administrative Appeals Tribunal Act 1975

41A

After paragraph 49(1)(c)

Insert:
(ca)
the Australian Information Commissioner holding office under the Australian Information Commissioner Act 2010; and

41B

Subsection 49(3)

Omit “or (c)”, substitute “, (c) or (ca)”.

Australian Crime Commission Act 2002

Schedule 1

Omit “Freedom of Information Act 1982, section 58”.

Environment Protection and Biodiversity Conservation Act 1999

Paragraph 93(3A)(a)

Repeal the paragraph, substitute:
(a)
is:
(i)
an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ii)
a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Subparagraph 131AA(4)(a)(i)

Repeal the subparagraph, substitute:
(i)
is an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ia)
is a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Paragraph 133(4)(a)

Repeal the paragraph, substitute:
(a)
is:
(i)
an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or
(ii)
a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Paragraph 135A(4)(a)

Repeal the paragraph, substitute:
(a)
is:
(i)
an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ii)
a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Paragraph 143(6)(a)

Repeal the paragraph, substitute:
(a)
is:
(i)
an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or
(ii)
a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Paragraph 146B(4)(a)

Repeal the paragraph, substitute:
(a)
is:
(i)
an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets); or
(ii)
a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or

Inspector‑General of Intelligence and Security Act 1986

Subsection 34(1AA)

Before “section 60A”, insert “Division 9 of Part VII or”.

Paragraph 34(1AA)(a)

Before “section”, insert “Division or”.

Subsection 34(5)

Before “section 60A”, insert “Division 9 of Part VII or”.

After paragraph 34(5)(c)

Insert:
(ca)
if the information is obtained by the person because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and

Schedule 7Privacy Commissioner transitionPart 1Preliminary

Definitions

(1) In this Schedule:

commencement day means the day on which the new law commences.
Information Commissioner means the Australian Information Commissioner appointed under section 14 of the new law.
new law means the Australian Information Commissioner Act 2010.
old law means Division 1 of Part IV of the Privacy Act 1988 as in force immediately before the commencement day.
Privacy Commissioner means the Privacy Commissioner appointed under section 19A of the old law.
(2) An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.
(3) Subject to subitem (2), an expression used in this Schedule that is also used in the Privacy Act 1988 has the same meaning in this Schedule as it has in that Act.
(4) Subject to subitems (2) and (3), an expression used in this Schedule that is also used in the Freedom of Information Act 1982 has the same meaning in this Schedule as it has in that Act.
(5) To avoid doubt, a reference in this Schedule to an Act, or a provision of an Act, that is amended by this Act is, in relation to a time on or after the commencement day, taken to be a reference to the provision as so amended.

Part 2Office holders, staff and consultants

Privacy Commissioner

(1) The person holding office as the Privacy Commissioner under section 19A of the old law immediately before the commencement day is taken to have been appointed as the Privacy Commissioner by the Governor‑General under subsection 14(4) of the new law for the balance of the person’s term of appointment that remained immediately before the commencement day.
(2) The Privacy Commissioner is taken to have been appointed on the same terms and conditions as applied immediately before the commencement day.
(3) This item does not prevent those terms and conditions being varied after the commencement day.

Staff

Existing agreements to continue

(1) Subitem (2) applies if:

(a)
on or after the commencement day, an APS employee is moved, because of a determination under section 72 of the Public Service Act 1999, from the Office of the Privacy Commissioner to the Office of the Australian Information Commissioner; and
(b)
the employee’s employment in the Office of the Privacy Commissioner was subject to any of the following agreements:
(i)
a collective agreement;
(ii)
an enterprise agreement;
(iii)
an ITEA;
(iv)
an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee);
(v)
a pre‑reform certified agreement.
(2) The agreement concerned has effect after the move, in relation to the employee’s employment, as if it had been made with the Information Commissioner.
Regulations
(3) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from the Office of the Privacy Commissioner to the Office of the Australian Information Commissioner.
Definitions

(4) In this item:

AWA has the meaning given by clause 1 of Schedule 7A to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Note:
AWA is short for Australian workplace agreement.
collective agreement has the meaning given by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
enterprise agreement has the meaning given by section 12 of the Fair Work Act 2009.
ITEA has the meaning given by section 326 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Note:
ITEA is short for individual transitional employment agreement.
pre‑reform AWA has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
pre‑reform certified agreement has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Consultants

(1) A person engaged as a consultant under subsection 26A(3) of the old law immediately before the commencement day is taken, on and after the commencement day, to have been engaged by the Information Commissioner as a consultant under section 24 of the new law.
(2) The person is taken to have been engaged on the same terms and conditions as applied to the person immediately before the commencement day.
(3) This item does not prevent those terms and conditions being varied after the commencement day.

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

5
Things done by, or in relation to, Privacy Commissioner
(1) If a thing was done by, or in relation to, the Privacy Commissioner before the commencement day, for a purpose, then the thing is taken, on and after the commencement day, to have been done by, or in relation to, the Information Commissioner for the same purpose.
(2) In this item, doing a thing includes making an instrument.
(3) The Minister may, by written instrument, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Privacy Commissioner.
(4) A determination under subitem (3) is not a legislative instrument.
6
Consultations by, and with, Privacy Commissioner
(1) A consultation being undertaken for the purposes of a provision of an Act (or an instrument under an Act) that was started by the Privacy Commissioner before the commencement day may be continued by the Information Commissioner in accordance with that provision on or after the commencement day.
(2) If, after undertaking consultation in accordance with a provision covered by subitem (1), the Privacy Commissioner would have been required or permitted to make a decision (or take another specified action), the Information Commissioner may make the decision (or take the specified action) after completing the consultation.

7
Comments sought, but not received, by Privacy Commissioner

(1) This item applies if:

(a)
the Privacy Commissioner gave a notice in accordance with a provision of an Act to a person for the purpose of:
(i)
seeking the person’s views before making a decision; or
(ii)
giving the person an opportunity to be heard before making a decision; and
(b)
the person did not respond to the Privacy Commissioner before the commencement day.
(2) The person may respond to the Information Commissioner in accordance with the provision of the Act on or after the commencement day.
8
Approval sought from, but not given by, Privacy Commissioner

(1) This item applies if:

(a)
the approval of the Privacy Commissioner was sought under a provision of an Act (or an instrument under an Act) for a program protocol, guidelines, code or other instrument, or for the variation or revocation of such a protocol, guidelines, code or instrument; and
(b)
the Privacy Commissioner did not give approval before the commencement day.
(2) On or after the commencement day, the Information Commissioner may give approval in accordance with the provision in accordance with which the approval was sought.
9
Decisions made, but not implemented, by Privacy Commissioner

(1) This item applies if:

(a)
the Privacy Commissioner made a decision in accordance with a provision of the Privacy Act 1988; and
(b)
having made the decision, the Privacy Commissioner was required to take a step to implement it; and
(c)
the Privacy Commissioner did not take the step before the commencement day.
(2) The Information Commissioner may take the step in accordance with the provision to implement the decision on or after the commencement day.
(3) In this item, make a decision includes forming a view or being satisfied of a matter.
10
Privacy Advisory Committee giving advice to Privacy Commissioner

(1) This item applies if:

(a)
the Privacy Advisory Committee was requested to advise the Privacy Commissioner in accordance with the functions conferred on the Committee by section 83 of the Privacy Act 1988; and
(b)
the Committee did not advise the Privacy Commissioner before the commencement day.
(2) The Committee may advise the Information Commissioner in accordance with the functions conferred by section 83 of the Privacy Act 1988 on or after the commencement day.

Part 4Investigations

Investigations

(1) An investigation for the purposes of a provision of an Act (or an instrument under an Act) that was started by the Privacy Commissioner before the commencement day may be completed by the Information Commissioner in accordance with that provision on or after the commencement day.
(2) Subitem (1) applies whether the investigation was initiated by a complaint or at the initiative of the Privacy Commissioner.

Requirement to give evidence or hold conference etc.

(1) Subitem (2) applies if:

(a)
the Privacy Commissioner required a person to provide evidence, information or any document; and
(b)
the evidence, information or document was not provided to the Privacy Commissioner before the commencement day.
(2) The person must provide the evidence, information or document to the Information Commissioner, on the same basis on which it was required to be provided to the Privacy Commissioner.

(3) Subitem (4) applies if:

(a)
the Privacy Commissioner directed a person to attend a conference under section 46 of the Privacy Act 1988; and
(b)
the conference was not held before the commencement day.
(4) The person must attend the conference if the conference is:
(a)
presided over by the Information Commissioner; and
(b)
held on or after the commencement day; and
(c)
held in accordance with section 46 of the Privacy Act 1988.
13
Applications on foot as part of investigation proceeding

(1) This item applies if:

(a)
an application was made to the Privacy Commissioner as part of an investigation under section 38A or 38B of the Privacy Act 1988 (as in force before the commencement day); and
(b)
the Privacy Commissioner did not determine the application before the commencement day.
(2) The Information Commissioner may determine the application in accordance with the provision in accordance with which the application was made on or after the commencement day.

Conference convened, but not held

(1) This item applies if:

(a)
the Privacy Commissioner convened a conference in accordance with section 47 of the Privacy Act 1988; and
(b)
the conference was not held before the commencement day.
(2) The Information Commissioner may hold the conference in accordance with section 47 of the Privacy Act 1988 on or after the commencement day.
15
Submissions invited, but not received, by Privacy Commissioner

(1) This item applies if:

(a)
the Privacy Commissioner, under subsection 43(5) or 53B(3) of the Privacy Act 1988, afforded a complainant or respondent an opportunity to appear before the Commissioner and make submissions, orally, in writing or both, in relation to a matter to which an investigation relates; and
(b)
the submissions were not made before the commencement day.
(2) The Information Commissioner may, in accordance with the subsection, receive the submissions on or after the commencement day.

Part 5Written instruments and reporting requirements

References in instruments

(1) This item applies if:

(a)
an instrument is in force immediately before the commencement day; and
(b)
the instrument contains a reference to the Privacy Commissioner.
(2) The instrument has effect on and after the commencement day as if the reference to the Privacy Commissioner were a reference to the Information Commissioner.
(3) The Minister may, by written instrument, determine that subitem (1) does not apply in relation to a specified reference.
(4) A determination under subitem (3) is not a legislative instrument.

Reporting requirements

Reports for periods ending after the commencement day

(1) Subitem (2) applies if:

(a)
immediately before the commencement day, a law required the Privacy Commissioner to provide a report in relation to a period; and
(b)
the period ends on or after the commencement day.
(2) The Information Commissioner must provide the report, as required, in relation to so much of the period as occurs before the commencement day.
Reports for periods ending before the commencement day

(3) Subitem (4) applies if:

(a)
a law required the Privacy Commissioner to provide a report in relation to a period that ended before the commencement day; and
(b)
the report was not provided before the commencement day.
(4) The Information Commissioner must provide the report as required.

Part 6Legal and other proceedings

18
Substitution of Information Commissioner as a party to pending proceedings
If any proceedings to which the Privacy Commissioner was a party were pending in any court or tribunal immediately before the commencement day, the Information Commissioner is substituted for the Privacy Commissioner as a party to the proceedings on and after the commencement day.
19
Reviews, examinations etc. by Privacy Commissioner
(1) This item applies if the Privacy Commissioner was doing any of the following things under the Privacy Act 1988 (but had not finished doing that thing) before the commencement day:
(a)
conducting a review of an approved privacy code under section 18BH;
(b)
examining proposed enactments in accordance with the function set out in paragraph 27(1)(b);
(c)
undertaking a conciliation process for the purposes of paragraph 28A(1)(b);
(d)
undertaking research and monitoring developments in accordance with the function set out in paragraph 27(1)(c);
(e)
examining records for the purposes of subsection 27(3);
(f)
examining records for the purposes of paragraph 28(1)(d).
(2) The Information Commissioner may finish doing the thing in accordance with the provision on and after the commencement day.

Review of adjudicator’s decisions

(1) This item applies if:

(a)
a person applied under section 18BI of the Privacy Act 1988 to the Privacy Commissioner for review of a determination made by an adjudicator; and
(b)
the Privacy Commissioner did not complete the review before the commencement day.
(2) The Information Commissioner may complete the review in accordance with section 18BI of the Privacy Act 1988 on and after the commencement day.

Conference convened, but not held

(1) This item applies if:

(a)
the Privacy Commissioner convened a conference in accordance with section 76 of the Privacy Act 1988; and
(b)
the conference was not held before the commencement day.
(2) The Information Commissioner may hold the conference in accordance with sections 76 and 77 of the Privacy Act 1988 on or after the commencement day.
22
Conference held, but determination not made, by Privacy Commissioner

(1) This item applies if:

(a)
the Privacy Commissioner held a conference in accordance with section 76 of the Privacy Act 1988; and
(b)
before the commencement day, the Privacy Commissioner did not make a determination in accordance with section 79 of that Act in relation to the matters raised at the conference.
(2) The Information Commissioner may make a determination in relation to those matters in accordance with section 79 of the Privacy Act 1988 on or after the commencement day.

Part 7Miscellaneous

23
Records etc. of Office of the Privacy Commissioner
All records or documents held, immediately before the commencement day, for the purposes of the performance of the functions, or the exercise of the powers, of the Privacy Commissioner, are, on and after the commencement day, taken to be held for the purposes of the performance of the functions, or the exercise of the powers, of the Information Commissioner.

Disclosure of private information

Despite the repeal of section 96 of the Privacy Act 1988 by this Act, that section (as in force immediately before the commencement day) continues to apply, in relation to conduct engaged in before the commencement day, as if that section had not been repealed.
25
Failure to appear before, or give information to, the Privacy Commissioner

(1) Subitem (2) applies if:

(a)
section 65 or 66 of the Privacy Act 1988 applied to a person before the commencement day in relation to conduct engaged in by the person; and
(b)
that provision would not (but for this item) apply to the person on or after the commencement day.
(2) That section applies to the person in relation to the conduct on and after the commencement day.

Saving of existing delegations

A delegation in force under section 99 of the Privacy Act 1988 immediately before the commencement day continues to have effect, subject to the new law, as if it were a delegation under section 25 of the new law on and after the commencement day.

Regulations

(1) The Governor‑General may make regulations prescribing matters:
(a)
required or permitted by this Schedule to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.
(2) The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.

Notes to the Freedom of Information Amendment (Reform) Act 2010

Note 1

The Freedom of Information Amendment (Reform) Act 2010 as shown in this compilation comprises Act No. 51, 2010 amended as indicated in the Tables below.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Freedom of Information Amendment (Reform) Act 2010	51, 2010	31 May 2010	See s. 2(1)
Statute Law Revision Act 2012	136, 2012	22 Sept 2012	Schedule 2 (items 16–18): (a)	—

Act

Number

and year

Date

of Assent

Date of commencement

Application, saving or transitional provisions

Freedom of Information Amendment (Reform) Act 2010

51, 2010

31 May 2010

See s. 2(1)

Statute Law Revision Act 2012

136, 2012

22 Sept 2012

Schedule 2 (items 16–18): (a)

—

(a) Subsection 2(1) (items 16 and 17) 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.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
16. Schedule 2, item 16	Immediately after the time specified in the Freedom of Information Amendment (Reform) Act 2010 for the commencement of item 23 of Schedule 3 to that Act.	1 November 2010
17. Schedule 2, items 17 and 18	Immediately after the time specified in the Freedom of Information Amendment (Reform) Act 2010 for the commencement of Schedule 4 to that Act.	1 November 2010

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Schedule 3
Part 2
Item 23..................................	am. No. 136, 2012
Schedule 4
Part 3
Item 65..................................	am. No. 136, 2012
Schedule 6
Part 2
Item 41..................................	am. No. 136, 2012