Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) 1991 No. 321
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 321
Freedom of Information (Miscellaneous Provisions) Regulations (Amendment)
Freedom of Information Act 1982
Section 94 of the Freedom of Information Act 1982 (the FOI Act) empowers the Governor-General to make Regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the Act. Sections 33, 33A, 34, 35 and 36 of the FOI Act provide that certificates may be issued which conclusively determine that material in documents is exempt from public disclosure under the Act. Section 36A of the FOI Act, which was inserted by the Freedom of Information Amendment Act 1991, provides that the regulations may provide maximum periods during which such certificates may remain in force and may provide the manner in which such certificates may be revoked.
The amending Regulations amend the Freedom of Information (Miscellaneous Provisions) Regulations (the Principal Regulations) to provide that such certificates remain in force for 5 years unless earlier revoked. The amending Regulations also provide that such certificates may be revoked at any time in full or in part.
Details of the amending Regulations are at Attachment A.
ATTACHMENT
Details of amendments to the Freedom of Information (Miscellaneous Provisions) Regulations (the amending Regulations)
Regulation 1 amends the Freedom of Information (Miscellaneous Provisions) Regulations (the Principal Regulations) as set out in the proposed Regulations.
Regulation 2
Certain sections of the FOI Act (ss. 33, 33A, 34, 35 and 36) provide for certificates to be issued which determine conclusively that documents are exempt from disclosure under the FOI Act on the grounds that disclosure would prejudice national security, defence, international relations, Commonwealth/State relations; or that they are Cabinet or Executive Council documents; or that they are internal working documents the disclosure of which would be contrary to the public interest. Section 36A provides that the Regulations may provide maximum periods for which certificates remain in force and may prescribe the manner in which certificates may be revoked.
Regulation 2 inserts a new regulation 5A in the Principal Regulations to provide certificates remain in force for 5 years from the date they are issued.
Regulation 2 also inserts a new regulation 5B in the Principal Regulations to prescribe the manner in which certificates may be revoked.
New sub-regulation 5B.(1) provides that a certificate issued under the FOI Act may be revoked in writing and in whole or in part.
New sub-regulation 5B(2) provides that a certificate issued under the Cabinet document exemption in section 34 of the FOI Act may be revoked by the Secretary to the Department of Prime Minister and Cabinet.
New sub-regulation 5B(3) provides that a certificate issued under the Executive Council document exemption in section 35 of the FOI Act may be revoked by the Secretary to the Executive Council.
New sub-regulation 5B(4) provides that a certificate issued in respect of an official document of a Minister under the national security, defence, international relations, Commonwealth/State relations, or internal working document exemptions in sections 33, 33A or 36 of the FOI Act may be revoked by the Minister.
New sub-regulation 5B(5) provides that a certificate issued in respect of a document of an agency under the national security, defence, international relations, Commonwealth/State relations, or internal working document exemptions in sections 33, 33A or 36 of the FOI Act may be revoked by the responsible Minister or principal officer of the agency.
(Authorised by the Attorney-General).
Overview
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) 1991 No. 321 were enacted to amend the existing Freedom of Information (Miscellaneous Provisions) Regulations and address the need for clearer provisions regarding the duration and revocability of certificates that exempt certain documents from disclosure under the Freedom of Information Act 1982. These amendments were introduced to ensure the legislation operates more effectively and transparently by setting definitive terms for how long such certificates can remain in force and the procedures for their revocation. The regulations were authorised by the Attorney-General and made under the authority granted to the Governor-General by Section 94 of the FOI Act to prescribe matters necessary for the Act’s implementation. The policy objective behind these amendments is to provide a more robust framework for managing sensitive information while still adhering to the principles of transparency and accountability inherent in the FOI Act.
Scope and Application
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) 1991 No. 321 amends the existing Freedom of Information (Miscellaneous Provisions) Regulations to provide additional clarity and governance over the process of issuing and revoking certificates that determine the exemption of certain documents from public disclosure under the Freedom of Information Act 1982. This legislation applies to all Commonwealth public sector agencies and officials who may issue certificates under the specified sections of the FOI Act. These sections include instances where disclosure would prejudice national security, defence, international relations, Commonwealth/State relations; where documents are Cabinet or Executive Council documents; or where they are internal working documents the disclosure of which would be contrary to the public interest. The jurisdictional reach of these amendments is Commonwealth-wide, impacting all entities governed by the FOI Act across Australia. The amendments establish that such certificates will remain in force for a maximum period of 5 years unless revoked earlier. They also provide specific provisions for the revocation of these certificates in whole or in part, detailing the authorised officials who can effect such revocations. These regulations extend the application of the FOI Act by providing more detailed rules on the administration of certificates related to document exemptions.
Key Provisions
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) 1991 No. 321 (the "Regulations") amend the existing Freedom of Information (Miscellaneous Provisions) Regulations (the "Principal Regulations") to provide further detail on the operation of certificates issued under the Freedom of Information Act 1982 (FOI Act). Specifically, the Regulations provide that such certificates remain in force for a maximum period of 5 years from the date they are issued unless revoked earlier (reg. 5A). Additionally, the Regulations set out the manner in which certificates may be revoked, either in whole or in part, by the relevant authority (reg. 5B).
The Regulations impose obligations on agencies and officers to issue and maintain certificates in accordance with the provisions of the FOI Act, including the grounds for exemption from disclosure. The Regulations also require agencies and officers to follow the prescribed process for revoking certificates where appropriate. This includes the ability to revoke certificates in part, allowing for the possibility that some parts of a document may no longer be exempt from disclosure while others remain exempt.
Failure to comply with the provisions of the Regulations may result in the invalidity of certificates or other consequences under the FOI Act. However, the Regulations themselves do not impose specific penalties or sanctions for non-compliance. Instead, any consequences would arise under the FOI Act or other relevant legislation. It is important for agencies and officers to familiarise themselves with the requirements of the Regulations to ensure compliance and avoid potential issues with certificate validity.
In summary, the Regulations provide important detail on the operation of certificates issued under the FOI Act, including the maximum period for which they remain in force and the process for revocation. Agencies and officers must ensure compliance with these requirements to maintain the validity of certificates and avoid potential issues under the FOI Act. While the Regulations do not impose specific penalties for non-compliance, failure to follow the prescribed process could result in invalidity of certificates or other consequences under the FOI Act.