EXPLANATORY STATEMENT
Statutory Rules 1985 No. 348
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 (“the Regulations”).
Section 94 of the Act empowers the Governor-General to make Regulations prescribing all matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 4 of the Act is an interpretation provision and sub-section 4(1) includes definitions of the expressions “prescribed authority”, “principal officer”, and “responsible Minister”.
The definition of “prescribed authority” in sub-section 4(1) is in wide terms so as to bring all statutory bodies and other agencies performing functions of the Commonwealth Government within the scope of the Act. Included in the definition are persons performing the duties of an office established by an enactment, bodies established for a public purpose in accordance with an enactment and other bodies, declared by the Regulations to be prescribed authorities, being bodies established by the Governor-General or by a Minister, or over which the Commonwealth can exercise control. Schedule 1 to the Regulations lists bodies in this last category of prescribed authorities.
The “principal officer” of an agency is, in the case of a Department, the Secretary to the Department. In the case of a prescribed authority, the “principal officer” is the person constituting the authority, the person entitled to preside at a meeting of the authority, or the person holding an office declared in the Regulations to be the principal office. Schedule 2 to the Regulations lists all the offices declared as principal offices.
The “responsible Minister” of an agency is the Minister administering the Department or, in the case of a prescribed authority established by an enactment, the Minister administering the enactment. For all other prescribed authorities, including those prescribed in the Regulations, it is necessary to declare a Minister to be the responsible Minister. Schedule 3 to the Regulations lists the responsible Ministers for this last category of prescribed authorities.
The amending regulations have updated these three Schedules to take account of changes that have occurred since the Regulations were last amended in June 1985, and to correct a number of omissions.
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 - Schedule 1
2. Regulation 2 has inserted a number of entries into Schedule 1 to the Principal Regulations. Schedule 1 is a list of bodies declared to be “prescribed authorities”.
Regulation 3 - Schedule 2
3. Regulation 3 has inserted a number of items in Schedule 2 to the Principal Regulations, corrected one item and deleted one item relating to a body which has been abolished. Schedule 2 is a list of “principal offices” in respect of prescribed authorities.
Regulation 4 - Schedule 3
4. Regulation 4 has inserted a number of entries into Schedule 3 to the Principal Regulations. Schedule 3 is a list of “responsible Ministers” in respect of prescribed authorities.
Overview
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1985 No. 348 were enacted to address the need for updating the Freedom of Information (Miscellaneous Provisions) Regulations, which were originally established under the Freedom of Information Act 1982. The Regulations were issued under the authority of the Attorney-General and aim to ensure that the definitions and lists of prescribed authorities, principal officers, and responsible Ministers within the scope of the Act are current and accurate. This was necessary to reflect changes in government structures and to correct omissions that had occurred since the last amendment in June 1985. The policy objective is to facilitate the effective administration of the Freedom of Information Act by providing clear and up-to-date guidance on the entities and individuals covered by the Act.
Scope and Application
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) amends the existing Freedom of Information (Miscellaneous Provisions) Regulations made under the Freedom of Information Act 1982. These regulations are designed to update and correct the schedules listing prescribed authorities, principal officers, and responsible Ministers to reflect changes in the structure of Commonwealth Government bodies and offices since the last amendment in June 1985. The Act applies to all statutory bodies and agencies performing functions of the Commonwealth Government, including persons performing duties of an office established by an enactment, bodies established for a public purpose in accordance with an enactment, and other bodies declared by the Regulations to be prescribed authorities. This broad definition ensures that the Act encompasses a wide range of Commonwealth entities. The Regulations further clarify the roles of principal officers and responsible Ministers for these entities, ensuring that the mechanisms for handling freedom of information requests are clearly defined and up-to-date. The amendments made by these regulations are necessary to maintain the effectiveness and accuracy of the administrative framework supporting the Freedom of Information Act.
Key Provisions
The key operative sections of these amending regulations under the Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) are primarily concerned with updating and correcting Schedules 1, 2, and 3. Regulation 1 (1) defines the term "Principal Regulations" as the Freedom of Information (Miscellaneous Provisions) Regulations, setting the foundation for the amendments. Regulation 2 (2) amends Schedule 1 by inserting several new entries to reflect the current list of bodies deemed "prescribed authorities" under the Act. Regulation 3 (3) modifies Schedule 2 by adding new items, correcting an existing item, and removing an entry pertaining to a defunct body, ensuring that the list of "principal offices" remains accurate and up-to-date. Regulation 4 (4) updates Schedule 3 by adding new entries, ensuring that the list of "responsible Ministers" correctly corresponds to the prescribed authorities.
These regulations impose several obligations on the parties governed by them. Firstly, the amendments to Schedule 1 require that new bodies be recognised as "prescribed authorities" and thus subject to the provisions of the Freedom of Information Act. Secondly, the updates to Schedule 2 necessitate that the principal officers of these authorities be accurately identified, ensuring proper accountability and responsibility. Thirdly, the changes to Schedule 3 ensure that the appropriate "responsible Ministers" are designated, which is crucial for the administration and oversight of the Act's provisions as they pertain to these authorities.
Breaches of the Freedom of Information Act or failure to comply with these regulations can lead to significant consequences. While the specific offences and penalties are not detailed in the amending regulations themselves, the overarching Act provides for both civil and criminal penalties. Under the Act, unauthorised disclosure of information can result in criminal charges, with penalties potentially including substantial fines and imprisonment. Additionally, failure to comply with the Act's requirements can lead to civil actions, where the court may order compensation for any harm caused by the breach. The maximum penalties under the Act can vary, but they are designed to enforce compliance and protect the integrity of the information governance framework.