Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1)

Administered by Department of the Prime Minister and Cabinet

Legislation au F2010L02817 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 271

 

Issued by the authority of the Minister for Privacy and Freedom of Information

 

Freedom of Information Act 1982

 

Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1)

 

Subsection 94(1) of the Freedom of Information Act 1982 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient for the carrying out or giving effect to the Act. 

 

The Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations) prescribe the bodies declared to be prescribed authorities (Schedule 1); the principal offices in respect of prescribed authorities (Schedule 2); the responsible ministers in respect of prescribed authorities (Schedule 3); and prescribe the requirements concerning the furnishing of information, pursuant to subsection 93(2) of the Act, for FOI annual reports (Regulation 6). 

 

The Regulations amend the Principal Regulations to reflect changes made to the act by the Freedom of Information Amendment (Reform) Act 2010 (the Reform Act). 

 

As a consequence of amendments to section 93 of the Act, the requirements relating to the provision of information for the FOI annual reports will change from 1 November 2010 so that agencies or Ministers must give to the Australian Information Commissioner (AIC) the information the AIC requires to prepare reports under section 30 of the Australian Information Commissioner Act 2010. 

 

The purpose of the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) is to amend the Principal Regulations to prescribe reporting arrangements for the year 2010-11, such that Ministers and agencies will report under the current arrangements for the first four months of 2010-11 (rather than quarterly) and then for a two month period ending 31 December 2010 and for two quarters in 2011, Ministers and agencies will be reporting to the AIC and thereafter returning to quarterly reporting to the AIC.  Thus, there will be two “annual “reports for 2010-11, one from the Minister for Privacy and Freedom of Information for the period 1 July to 31 October 2010 and one from the AIC, for the period 1 November 2010 to 30 June 2011.  Thereafter the AIC will be presenting annual reports.  

 

Under the Act, the “principal officer” of an agency may make decisions on access requests or authorise other officers for this purpose.  The Reform Act expands the definition of principal officer in subsection 4(1) of the Act, with the aim of reducing the need to prescribe agencies to determine the office holder for this purpose.  

 

The purpose of the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) is also to amend the Principal Regulations to remove two references to prescribed authorities, as they no longer exist; lists principal offices in respect of prescribed authorities that are not caught by the expanded definition of principal office; deletes the references to responsible Ministers, in respect of prescribed authorities, as the entities no longer exist or there is no reason to continue to prescribe them in this manner. 

 

The Regulations give effect to these purposes. 

 

Details of the proposed Regulations are set out in the Attachment.  

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

 

The Regulations commence on 1 November 2010. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT

 

Details of the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) 

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1). 

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010. 

 

Regulation 3 – Amendment of Freedom of Information (Miscellaneous Provisions) Regulations 1982 

 

This regulation provides that the Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations) are amended as set out in the Schedule 1. 

 

Schedule 1– Amendments 

 

Item [1] – Regulations 4 to 6 

 

Provides for a substitute regulation 4 that, for paragraph (b) of the definition of principal officer in subsection 4(1) of the Act, specifies that an office in the new schedule 2 is the “principal office” for the authority mentioned in the item.  This reflects modern drafting practices. 

 

Provides for a substitute regulation 5 that, for paragraph 93 (3) (a) of the Act, specifies the new times for giving information for the purpose of the FOI annual report, consequent upon changes in responsibility (from the Minister for Privacy and Freedom of Information to the Australian Information Commissioner) to take place on 1 November 2010, five months into the reporting year.  

 

Item [2] – Schedule 1 

 

Omits “Coal Mines Insurance Pty Ltd” and “National Media Liaison Service” from the list in the Schedule, as neither exists. 

Item [3] - Schedule 2 

Substitutes a new Schedule 2 -Authorities and offices (under regulation 4) comprising 21 Authorities and Offices as listed, consequent upon the expanded definition of “principal officer” in the Act, taking effect on 1 November 2010.  The definition was changed to reduce the need to prescribe. 

Item [4] – Schedule 3 

Omits schedule 3 as the entities no longer exist or there is no reason to continue to prescribe them in the current manner. 

Overview

The Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) were enacted to address certain administrative and structural changes necessitated by the Freedom of Information Amendment (Reform) Act 2010. This legislative instrument, issued by the Minister for Privacy and Freedom of Information, seeks to align the existing regulations with the reforms introduced by the Act. One of the primary objectives is to update the reporting requirements for Freedom of Information (FOI) annual reports, transitioning from the Minister for Privacy and Freedom of Information to the Australian Information Commissioner (AIC) as the entity responsible for compiling these reports from 1 November 2010. The Regulations also aim to streamline the definition of "principal officer" within agencies, thereby reducing the need for specific prescriptions regarding who can make decisions on access requests. This change reflects a broader policy objective of enhancing efficiency and clarity in the administration of FOI requests. The Regulations came into effect on 1 November 2010, ensuring that the changes are implemented in tandem with the legislative reforms.

Scope and Application

The Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) apply to the administration and implementation of the Freedom of Information Act 1982 by amending the Freedom of Information (Miscellaneous Provisions) Regulations 1982. These regulations primarily affect Commonwealth authorities and agencies, as well as the Australian Information Commissioner, by adjusting reporting requirements for Freedom of Information annual reports to reflect legislative changes. The scope of the amendments extends to defining the "principal officer" for purposes of access requests and removing outdated references to prescribed authorities that no longer exist. The Regulations have a Commonwealth jurisdictional reach, applying nationally across Australia. There are no stated exclusions or thresholds within the regulations themselves; however, they are subject to the broader criteria and constraints outlined in the principal Act. The amendments made by these Regulations are necessary to align the regulatory framework with the legislative reforms introduced by the Freedom of Information Amendment (Reform) Act 2010, ensuring that reporting duties and definitions are up-to-date and reflective of current organisational structures and responsibilities.

Key Provisions

The main operative sections of the Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2010 (No. 1) (the Regulations) are Regulation 2, which sets the commencement date of the Regulations as 1 November 2010, and Regulation 3, which specifies the amendments made to the Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations). These amendments reflect the changes made to the Freedom of Information Act 1982 (the Act) by the Freedom of Information Amendment (Reform) Act 2010 (the Reform Act). Schedule 1 to the Regulations details these amendments, including the substitution of Regulation 4 to update the definition of "principal officer" and the substitution of Regulation 5 to adjust the times for providing information for the Freedom of Information (FOI) annual reports, which now require reporting to the Australian Information Commissioner (AIC) from 1 November 2010. The obligations and requirements imposed by the Regulations on the parties or entities they govern are primarily concerned with the reporting requirements for FOI annual reports. The Regulations mandate that from 1 November 2010, agencies and Ministers must provide the AIC with the information required to prepare reports under section 30 of the Australian Information Commissioner Act 2010. The Regulations also require adjustments to the reporting periods for the year 2010-11, with two distinct annual reports: one from the Minister for Privacy and Freedom of Information covering the period 1 July to 31 October 2010, and one from the AIC for the period 1 November 2010 to 30 June 2011. Thereafter, the AIC will be responsible for presenting annual reports. Furthermore, the Regulations amend the definition of "principal officer" to reduce the need to prescribe agencies, and they remove references to prescribed authorities and responsible Ministers that no longer exist or are no longer necessary to prescribe. The Regulations do not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, it is understood that failure to comply with the Act’s requirements for FOI annual reports may result in legal consequences. While the specific penalties for non-compliance are not detailed in the Explanatory Statement, breaches of the Act can typically lead to civil penalties, enforcement actions by the AIC, or other legal remedies. The Reform Act and the Act itself provide the framework for these potential consequences, which may include fines or other sanctions for non-compliance with the FOI provisions.

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