EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 276
Issued by the Authority of the Cabinet Secretary
Freedom of Information Act 1982
Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1)
Subsection 94(1) of the Freedom of Information Act 1982 (the Act) provides, in part, that the Governor-General may make regulation, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for the carrying out or giving effect to the Act.
Subsection 4(1) of the Act defines the terms ‘principal officer’.
The purpose of the Regulations is to prescribe the General Manager (GM) of Fair Work Australia (FWA) as the principal officer for the purposes of subparagraph (b)(i) of the definition of ‘principal officer’ in the Act.
The ‘principal officer’ of an agency has responsibility under the Act for various duties and powers that are essential to the effective operations of the Act. For example, a decision on an FOI request to an agency may be made by the responsible Minister, the principal officer of the agency, or an officer of the agency acting in accordance with the arrangements approved by the responsible Minister or the principal officer of the agency.
Subparagraph b(i) of the definition of ‘principal officer’ declares the principal officer in relation to a prescribed authority to be the person holding, or performing, the duties of the principal office as described in the Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations). Regulation 4 of the Principal Regulations provides that an office specified in Column 3 of an item in Schedule 2 of the Principal Regulations is declared to be the principal office in respect of the prescribed authority or authorities specified in Column 2 of that item. The Regulations specify the GM of FWA for this purpose.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations have no or low impact on business and individuals or the economy. Therefore, in accordance with the Government’s best practice regulations no further regulatory analysis is required.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
The Regulations were developed in consultations with FWA. Wider consultation was unnecessary for this legislative instrument because this instrument affects only FWA.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1)
Details of the Regulations are:-
Regulation 1 provides that the name of these Regulations is the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1).
Regulation 2 provides that these Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 provides for Schedule 1 to amend the Freedom of Information (Miscellaneous Provisions) Regulations 1982.
Schedule 1 – Amendments
Item [1] – Schedule 2, after item 66
This item inserts the General Manager of Fair Work Australia as the ‘principal officer’ for the purposes of subparagraph (b)(i) of the definition of ‘principal officer’ in subsection (4)(1) of the Freedom of Information Act 1982.
Overview
The Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1) were enacted to address the need for clarity and specificity in the administration of the Freedom of Information Act 1982. This legislative instrument was developed in consultation with Fair Work Australia (FWA) and aims to prescribe the General Manager of FWA as the principal officer for the purposes of the Act. This amendment ensures that there is a clear point of responsibility within FWA for the handling of Freedom of Information requests, aligning with the broader objectives of the Act to promote transparency and accountability within Australian public agencies. The Regulations were registered and came into effect on the day after their registration on the Federal Register of Legislative Instruments, reflecting the streamlined approach to regulatory updates with minimal impact on business and individuals.
Scope and Application
The Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1) serve to amend the Freedom of Information (Miscellaneous Provisions) Regulations 1982 by specifying the General Manager of Fair Work Australia (FWA) as the 'principal officer' for the purposes of the Freedom of Information Act 1982. This designation is essential as the principal officer of an agency is responsible for various duties and powers crucial to the effective operation of the Act. These duties include the authority to make decisions on Freedom of Information (FOI) requests to the agency, either by the responsible Minister, the principal officer, or an officer acting under the approved arrangements. The Regulations are in line with the provisions of the Freedom of Information Act 1982 and were developed in consultation with FWA, with no significant impact on business or the economy, thereby not necessitating further regulatory analysis. They apply on a Commonwealth level and commenced on the day after registration on the Federal Register of Legislative Instruments.
Key Provisions
The Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1) (the Regulations) primarily serve to clarify and update the definition of 'principal officer' under the Freedom of Information Act 1982 (the Act). Regulation 3 amends Schedule 2 of the Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations) to include the General Manager (GM) of Fair Work Australia (FWA) as the principal officer for the purposes of subparagraph (b)(i) of the definition of 'principal officer' in subsection (4)(1) of the Act. This amendment ensures that the GM of FWA is recognised as the responsible individual for certain duties and powers under the Act.
The principal officer of an agency, as defined in the Act, holds significant responsibilities. This includes the authority to make decisions on Freedom of Information (FOI) requests, either personally or through approved officers. By prescribing the GM of FWA as the principal officer, the Regulations establish clear lines of responsibility and accountability within FWA concerning FOI matters. This is critical for the effective administration of the Act within FWA.
The Regulations impose specific obligations on the GM of FWA. As the designated principal officer, the GM is tasked with ensuring that FWA complies with the Act’s requirements. This includes overseeing the handling of FOI requests, ensuring proper documentation and record-keeping, and facilitating access to documents as required by law. Furthermore, the GM must ensure that any decisions made by FWA in response to FOI requests are in line with the Act's provisions.
Failure to comply with the obligations set out in the Act can result in various consequences. While the explanatory statement does not detail specific offences or penalties within the Regulations themselves, breaches of the Act can generally lead to civil or criminal liabilities. For example, unauthorised disclosure of information can result in criminal penalties, including fines and imprisonment. Additionally, there may be civil actions for damages if an individual's rights under the Act are infringed. The precise penalties would depend on the nature and severity of the breach, as outlined in the Act.