EXPLANATORY STATEMENT
Statutory Rules 1990 No 132
Issued by the Authority of the Attorney-General
Subject - Freedom of Information Act 1982:
Freedom of Information (Miscellaneous Provisions) Regulations (Amendment)
These regulations made under sections 4 and 94 of the Freedom of Information Act, 1982 (the FOI Act) amend the Freedom of Information (Miscellaneous Provisions) Regulations (the Regulations).
Section 94 of the FOI 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 FOI Act is an interpretation provision and sub-section 4(1) includes a definition of the expression of prescribed authority. 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 FOI Act.
Paragraph (a) of the definition includes within the phrase prescribed authority bodies corporate or unincorporated bodies, other than incorporated companies or associations, established for a public purpose in accordance with an enactment. Paragraph (b) of the definition includes within the phrase bodies declared by the Regulations to be prescribed authorities, being bodies established by the Governor-General or a Minister or incorporated companies or associations over which the Commonwealth can exercise control. Schedule 1 to the Regulations lists bodies in this last category of prescribed authorities.
The proposed amendment to Schedule 1 of the Regulations is required to take account of the restructuring of a Commonwealth agency. The OTC (Conversion into Public Company) Act 1988, the operative provisions of which came into effect on 1 April 1989, converted the Overseas Telecommunications Commission into a public company, changing the status of the agency for the purposes of the FOI Act. The new company, OTC Limited, ceased to fall within the scope of paragraph (a) of the definition of prescribed authority and is now not covered by the Act. The proposed amendment declares OTC Limited to be a prescribed authority within the scope of paragraph (b) of sub-section 4(1) of the Act. This is consistent with the substitution, by the Schedule to the OTC (Conversion into Public Company) Act, of OTC Limited for Overseas Telecommunications Commission (Australia) in Part II of Schedule 2 of the FOI Act as an agency exempt from the FOI Act in relation to documents in respect of its competitive commercial activities.
The amendment to Schedule 2 is required to take account of a change in the office which will serve as the principal office for OTC Limited for the purposes of the Act. The Principal office is now to be the Chief Executive.
Details on the proposed Regulations are attached.
The Minute recommends that regulations be made in the form proposed.
Authority: Section 94 of the Freedom of Information Act 1982
ATTACHMENT
Details on the Freedom of Information (Miscellaneous Provisions) Regulations (Amendment)
Regulation 1 - Commencement
Regulation 1 defines the term Principal Regulations as meaning the Freedom of Information (Miscellaneous Provisions) Regulations.
Regulation 2 - Schedule 1
Regulation 2 inserts OTC Limited into the list of bodies declared to be prescribed authorities.
The Overseas Telecommunications Commission (the Commission) was a body within paragraph (a) of the definition of prescribed authority in the Freedom of Information Act 1982 (the FOI Act). By virtue of the OTC (Conversion into Public Company) Act 1988 the Commission was replaced by a public company, OTC Limited, over which the Commonwealth is able to exercise control. The company was incorporated on 1 April 1989. In order to keep the organisation, restructured as an incorporated company, within the scope of the FOI Act it is necessary to specifically declare, by listing in Schedule 1 of the Regulations, that the company is a prescribed authority for the purposes of the FOI Act. This is consistent with the inclusion of OTC Limited in Part II of Schedule 2 of the Act as an agency exempt from the FOI Act in relation to documents in respect of its competitive commercial activities.
Regulation 3 - Schedule 2
Regulation 3 alters the office within the company which is declared to be the principal office for the purposes of the FOI Act. The principal office is now the Chief Executive.
Overview
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1990 No 132 were enacted to address the restructuring of the Overseas Telecommunications Commission (OTC) into a public company, OTC Limited, under the OTC (Conversion into Public Company) Act 1988. This change necessitated an update to the existing regulations to ensure that OTC Limited remained within the scope of the Freedom of Information Act 1982 (FOI Act). The regulations were made under sections 4 and 94 of the FOI Act, which empower the Governor-General to prescribe necessary matters for the Act's implementation. The policy objective of these amendments is to maintain the transparency and accountability of OTC Limited by ensuring it is subject to the provisions of the FOI Act, while also reflecting the company's new status as an incorporated entity. The amendments specifically declare OTC Limited as a prescribed authority and adjust the designation of its principal office for FOI purposes.
Scope and Application
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1990 No 132, made under sections 4 and 94 of the Freedom of Information Act 1982, amend the Regulations to adjust for the restructuring of the Overseas Telecommunications Commission (OTC) into a public company, OTC Limited. These regulations extend to all Commonwealth agencies and bodies performing functions of the Commonwealth Government, including statutory bodies and other agencies established for public purposes, as well as bodies declared by the Regulations to be prescribed authorities. The amendment is necessary to ensure OTC Limited, formed following the conversion from the OTC, remains within the scope of the FOI Act as a prescribed authority. This amendment aligns with the exclusion of OTC Limited from the FOI Act in relation to documents concerning its competitive commercial activities, as stipulated in the OTC (Conversion into Public Company) Act 1988. Additionally, the regulations update the designation of the principal office within OTC Limited, now identified as the Chief Executive's office for the purposes of the FOI Act. These changes reflect the legislative intent to maintain appropriate oversight and transparency while accommodating the structural changes within the Commonwealth's administrative framework.
Key Provisions
The Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) under the Freedom of Information Act 1982 primarily serve to update the regulatory framework to reflect recent structural changes in certain Commonwealth agencies. Section 4 of the Act defines "prescribed authority," which encompasses a broad range of entities performing public functions under Commonwealth legislation. Regulation 2 amends Schedule 1 of the Regulations by inserting OTC Limited into the list of bodies declared to be prescribed authorities. This is a crucial step, given that the Overseas Telecommunications Commission, previously covered under paragraph (a) of the definition of prescribed authority, was restructured as a public company, OTC Limited, effective 1 April 1989.
The Regulations impose specific obligations on OTC Limited, now a prescribed authority under the FOI Act. As a result, OTC Limited is required to comply with the Act's provisions concerning access to documents and the disclosure of information, except in cases where such disclosure would be inconsistent with its competitive commercial activities. This means that while OTC Limited must generally adhere to the FOI Act's requirements, it retains exemptions for certain sensitive commercial information.
Failing to comply with the FOI Act or the amended Regulations could lead to significant consequences. For instance, if OTC Limited fails to properly manage requests for information or improperly withholds documents that should be disclosed, it could face legal action. The Act does not specify maximum penalties in the explanatory statement, but generally, breaches of the FOI Act can result in substantial fines and other civil penalties. Additionally, officers or employees of OTC Limited who intentionally or negligently contravene the Act may also face criminal penalties, including fines and imprisonment, depending on the severity of the breach.
Moreover, the amendment to Schedule 2, which designates the Chief Executive's office as the principal office for FOI purposes, ensures that there is a clear point of contact within the company for FOI-related inquiries and document requests. This centralisation helps streamline the process of obtaining information and ensures that OTC Limited can efficiently manage its obligations under the FOI Act. Ensuring compliance with these provisions is essential for maintaining transparency and accountability within the restructured agency.