EXPLANATORY STATEMENT
Statutory Rules 1983 No. 338
Issued by the authority of the Attorney-General
FREEDOM OF INFORMATION (MISCELLANEOUS PROVISIONS) REGULATIONS (AMENDMENT)
These regulations, made under sections 4 and 94 of the Freedom of Information Act 1982 (“the Act”), amend the Freedom of Information (Miscellaneous Provisions) Regulations.
Section 94 of the Act empowers the Governor-General to 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 are convenient to be prescribed for carrying out or giving effect to the Act. Section 4 of the Act is an interpretation provision. Sub-section 4(1), so far as is relevant, defines the expressions “prescribed authority”, “principal officer” and “responsible Minister” as follows:
“‘prescribed authority’ means -
…
(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being -
(i) a body established by the Governor-General or by a Minister; or
(ii) an incorporated company or association over which the Commonwealth is in a position to exercise control;”
“‘principal officer’ means -
…
(b) in relation to a prescribed authority -
(i) if the regulations declare an office to be the principal office in respect of the authority - the person holding, or performing the duties of, that office;”
“‘responsible Minister’ means -
…
(d) in relation to any other prescribed authority - the Minister declared by the regulations to be the responsible Minister in respect of that authority”.
The Freedom of Information (Miscellaneous Provisions) Regulations, so far as are relevant, set out -
• in Schedule 1 - a list of bodies each declared a “prescribed authority” for the purposes of the FOI Act;
• in Schedule 2 - a list of officers each prescribed a “principal officer” for the purposes of the FOI Act; and
• in Schedule 3 - a list of persons declared to be prescribed officers in relation to a court, or a tribunal, authority or body exempt under section 6 of the Act in respect of non-administrative matters.
The proposed regulations contain amendments of these Schedules reflecting changes in administrative arrangements effected by the Administrative Arrangements Orders dated 11 March 1983 and 1 July 1983, other changes that have occurred since the Freedom of Information (Miscellaneous Provisions) Regulations were made and amendments consequential upon the coming into operation of the Freedom of Information Amendment Act 1983.
The proposed regulations also include a new Schedule 3 setting out a list of Ministers each declared in respect of certain prescribed authorities to be the “responsible Minister” for those authorities for the purposes of the FOI Act. These authorities presently have no “responsible Minister”.
Notes on the amending regulations are attached.
ATTACHMENT
NOTES ON AMENDING REGULATIONS
Regulation 1 - Principal Regulations
Regulation 1 provides that the expression “Principal Regulations” means the Freedom of Information (Miscellaneous Provisions) Regulations.
Regulation 2 - New regulation 5
2. Regulation 2 repeals regulation 5 of the Principal Regulations and inserts a new regulation 5. The repeal of regulation 5 of the Principal Regulations is consequential upon an amendment made by the Freedom of Information Amendment Act 1983, which avoids having separate terminology for the principal decision-maker in respect of courts and tribunals to that used in respect of other agencies. New Regulation 5 declares each of the Ministers listed in new Schedule 3 to be a “responsible Minister” for the purposes of paragraph (d) of the definition of that expression in sub-section 4(1) of the Act.
Regulation 3 - Schedule 1
3. Regulation 3 repeals Schedule 1 to the Principal Regulations and substitutes a new Schedule 1.
Regulation 4 - Schedule 2
4. Regulation 4 amends a number of items in Schedule 2 to the Principal Regulations.
Regulation 5 - Schedule 3
5. Regulation 5 repeals Schedule 3 in the Principal Regulations and inserts a new Schedule 3. The repeal of Schedule 3 in the Principal Regulations is consequential upon the amendment made by regulation 2 repealing regulation 5 in the Principal Regulations. New Schedule 3 sets out a list of Ministers each declared in respect of a specified prescribed authority to be the “responsible Minister” for that authority for the purposes of paragraph (d) of the definition of that expression in sub-section 4(1) of the Act.
Overview
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1983 No. 338, made under sections 4 and 94 of the Freedom of Information Act 1982, were enacted to update the regulatory framework governing the disclosure of documents under the Freedom of Information Act. These regulations were introduced to address the need for a modernised and comprehensive set of regulations that reflect changes in administrative arrangements and other consequential amendments made by the Freedom of Information Amendment Act 1983. The objective of these amendments was to ensure that the regulatory framework aligns with current practices and legislative changes, thereby facilitating efficient and effective administration of the Act. The regulations were issued by the authority of the Attorney-General, reflecting the importance of maintaining transparency and accessibility of government information in accordance with the principles of the Freedom of Information Act.
Scope and Application
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) provide amendments to the existing regulations, which were made under the Freedom of Information Act 1982. These amendments are necessary to reflect changes in administrative arrangements as outlined in the Administrative Arrangements Orders dated 11 March 1983 and 1 July 1983, as well as other changes that have occurred since the original regulations were made. Additionally, the amendments address consequential changes resulting from the Freedom of Information Amendment Act 1983. The regulations amend Schedules 1, 2, and 3 of the Principal Regulations, which respectively list prescribed authorities, principal officers, and responsible Ministers for the purposes of the FOI Act. Regulation 2 introduces a new regulation 5, repealing the previous regulation 5, and declares each of the Ministers listed in new Schedule 3 as a "responsible Minister" for certain prescribed authorities. Regulation 3 replaces Schedule 1 with a new Schedule 1, and regulation 4 makes amendments to a number of items in Schedule 2. Regulation 5 repeals Schedule 3 and inserts a new Schedule 3, setting out a list of Ministers each declared as a "responsible Minister" for specified prescribed authorities. These amendments ensure that the regulations remain consistent with the current administrative structure and the requirements of the FOI Act.
Key Provisions
The primary sections of these amending regulations concern the alterations to the lists of prescribed authorities, principal officers, and responsible Ministers as set out in the original Freedom of Information (Miscellaneous Provisions) Regulations. Regulation 2 inserts a new Regulation 5, which declares specified Ministers as “responsible Ministers” for certain prescribed authorities under the Freedom of Information Act 1982 (FOI Act). Regulation 3 replaces Schedule 1, listing the prescribed authorities, to reflect changes in administrative arrangements. Regulation 4 amends Schedule 2, which lists principal officers, making necessary adjustments. Regulation 5 introduces a new Schedule 3, establishing the responsible Ministers for the authorities listed in Schedule 1, thereby ensuring that each prescribed authority has a designated responsible Minister.
These amending regulations impose several obligations and requirements on the parties they govern. They necessitate the updating of lists of prescribed authorities, principal officers, and responsible Ministers to align with current administrative structures and legal requirements. The responsible Ministers identified in the new Schedule 3 must adhere to the provisions of the FOI Act, ensuring transparency and accountability in their respective authorities. These regulations also require the prescribed authorities to recognise the updated roles of principal officers as listed in the amended Schedule 2, ensuring that the appropriate individuals are designated for handling FOI requests.
Failure to comply with these regulations can result in various civil and criminal consequences. Although specific penalties are not detailed in the explanatory statement, breaches of the FOI Act can lead to substantial penalties under the Act itself. For instance, unauthorised disclosures of information can incur penalties of up to $8,300 per contravention, while serious breaches may result in fines of up to $50,000 or imprisonment for up to two years. Furthermore, non-compliance may also lead to civil actions for damages, further emphasising the importance of adhering to these regulatory amendments.
In summary, these amending regulations are integral in ensuring that the FOI Act's requirements are effectively implemented and enforced. By updating the lists of prescribed authorities, principal officers, and responsible Ministers, they help maintain the integrity and transparency of the FOI process. The obligations placed on these entities underscore the critical role they play in upholding the principles of freedom of information in Australia. The potential penalties for non-compliance serve as a deterrent, ensuring that the provisions of the FOI Act are respected and enforced.