Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Freedom of Information Act 1982 to give effect to recommendations made by the Australian Law Reform Commission and the Administrative Review Council, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced Senate 05 Sep 2000

Freedom of Information Amendment (Open Government) Bill 2000 [2002]
First Reading

1998-1999-2000

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Freedom of Information Amendment (Open Government) Bill 2000

No. , 2000

(Senator Murray)

A Bill for an Act to amend the Freedom of Information Act 1982 to give effect to recommendations made by the Australian Law Reform Commission and the Administrative Review Council, and for related purposes

Contents

1       Short title 1

2       Commencement 1

3       Schedule(s) 3

Schedule 1--Amendment of Freedom of Information legislation       4

Freedom of Information Act 1982       4

Freedom of Information (Fees and Charges) Regulations       31

A Bill for an Act to amend the Freedom of Information Act 1982 to give effect to recommendations made by the Australian Law Reform Commission and the Administrative Review Council, and for related purposes

The Parliament of Australia enacts:

1 Short title
        This Act may be cited as the Freedom of Information Amendment (Open Government) Act 2000.

2 Commencement
       (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

       (2) Items 11, 12, 13, 23, 24, 26, 53, 62 and 63 of Schedule 1 commence on the third anniversary of the day on which this Act receives the Royal Assent.

       (3) Items 102, 103, 104, 105, 107, 109, 111, 112, 114, 115, 118, 119, 120 and 122 of Schedule 1 commence on the first anniversary of the day on which this Act receives the Royal Assent unless subsection (4) or (5) applies.

       (4) If, before the day mentioned in subsection (3):

       (a) the Attorney-General is satisfied that an agency mentioned in item 102, 103, 104 or 105 of Schedule 1 should continue to be an exempt agency for the purposes of the Freedom of Information Act 1982; and

       (b) the Attorney-General has caused to be laid before each House of the Parliament a statement setting out the reasons why the Attorney-General is satisfied that an agency should continue to be an exempt agency; and

       (c) neither House, by resolution agreed to not more than 15 sitting days of that House after the statement is tabled, disapproves of the statement;

the item mentioning that agency never commences.

       (5) If, before the day mentioned in subsection (3):

       (a) the Attorney-General is satisfied that an agency mentioned in item 107, 109, 111, 112, 114, 115, 118, 119, 120 or 122 of Schedule 1 in respect of particular documents should continue to be an exempt agency in respect of those documents for the purposes of the Freedom of Information Act 1982; and

       (b) the Attorney-General has caused to be laid before each House of the Parliament a statement setting out the reasons why the Attorney-General is satisfied that an agency should continue to be an exempt agency in respect of particular documents; and

       (c) neither House, by resolution agreed to not more than 15 sitting days of that House after the statement is tabled, disapproves of the statement;

the item mentioning the agency never commences.

       (6) Nothing in this section prevents the Attorney-General from tabling a revised statement under paragraph (3)(b) or (4)(b) if either House of the Parliament, by resolution, disapproves of an earlier statement.


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3 Schedule(s)
        Subject to section 2, each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendment of Freedom of Information legislation

Freedom of Information Act 1982

1 Section 3

Repeal the section, substitute:

3 Object
       (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth:

       (a) to enable people to participate in the policy, accountability and decision-making processes of government; and

       (b) to open the Government's activities to scrutiny, discussion, comment and review; and

       (c) to increase the accountability of the executive branch of government;

by:

       (d) creating a right of access to personal information in documentary form about an applicant in the possession of Ministers, departments and public authorities; and

       (e) creating a general right of access to the national resource of information in documentary form in the possession of Ministers, departments and public authorities; and

       (f) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

       (2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and give effect to the principles of representative democracy, and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

2 Subsection 4(1) (definition of agency)

After "Department,", insert "a Parliamentary Department,".

3 Subsection 4(1)

Insert:

Commissioner means the FOI Commissioner appointed under Part VIA.

4 Subsection 4(1) (subparagraph (a)(iv) of the definition of document)

After "images", insert ", data".

5 Subsection 4(1)

Insert:

Parliamentary Department means a Department of the Parliament established under the Parliamentary Service Act 1999.

6 After subsection 4(5)

Insert:

       (5A) For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may cause embarrassment to the Government.

7 After section 9

Insert:

9A Publication of information about this Act
        Each Agency must make information about how to use this Act available in plain English at each office of the agency to which members of the public have ordinary access.

8 After section 11

Insert:

11A Matter relating to personal affairs of applicant
        If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding:


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       (a) whether it is in the public interest to grant access to the applicant; and

       (b) the effect that the disclosure of the matter might have.

9 Subsection 12(2)

Omit "more than 5 years before the date of commencement of this part", substitute "more than 30 years before the date of the request for access".

10 After paragraph 13(1)(d)

Insert:

        or (e) in the collection of library material maintained by the Parliamentary Library;

11 Paragraph 15(5)(a)

Omit "14 days", substitute "7 days".

12 Paragraph 15(5)(b)

Omit "30 days", substitute "14 days".

13 Subparagraph 15A(2)(d)(ii)

Omit "30 days", substitute "14 days".

14 Section 24

Repeal the section, substitute:

24 Requests may be refused in certain cases
       (1) If the agency or Minister dealing with a request considers:

       (a) that the work involved in processing the request:

       (i) in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations; or

       (ii) in the case of a Minister--would substantially and unreasonably interfere with the performance of the Minister's functions; or

       (b) that the request does not comply with paragraph 15(2)(b);

the agency or Minister must:

       (c) give the applicant a written notice:

       (i) stating an intention to refuse access; and

       (ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

       (d) give the applicant a reasonable opportunity so to consult; and

       (e) as far as is reasonably practicable, provide the applicant with any information that would assist the making of the request in such a form.

       (2) If, after consulting with the applicant under subsection (1), the agency or Minister is satisfied as to the matters mentioned in subparagraph (1)(a)(i) or (ii), as the case requires, the agency or Minister may refuse to grant access to documents in accordance with the request.

       (3) Subject to subsection (4) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (2) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used:

       (a) in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

       (b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used:

       (i) in examining the documents; or

       (ii) in consulting with any person or body in relation to the request; or

       (c) in making a copy, or an edited copy, of the documents; or

       (d) in notifying any interim or final decision on the request.

       (4) The agency or Minister is not to have regard to any maximum amount, specified in regulations, payable as a charge for processing a request of that kind.

       (5) In deciding whether to refuse, under subsection (2), to grant access to documents, an agency or Minister must not have regard to:

       (a) any reasons that the person who requests access gives for requesting access; or

       (b) the agency's or Minister's belief as to what are his or her reasons for requesting access.

       (6) For the purposes of section 15, the period commencing on the day an applicant is given a notice under paragraph (1)(c) and

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ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (1) is to be disregarded in the computation of the 14 day period referred to in section 15.

       (7) If:

       (a) a decision is made under this section to refuse a request for access to information; and

       (b) the decision is not the subject of an application under Part VI;

the agency or Minister must refund any application fee paid by the applicant in respect of the request.

15 After section 24A

Insert:

24AA Request may be refused if it is the same as a previous request
        An agency or Minister may refuse a request for access to a document if:

       (a) the applicant has previously made a request for the same document; and

       (b) the agency or Minister has refused the request; and

       (c) the agency or Minister is satisfied that there are no reasonable grounds for the request.

16 Section 25

Omit "or 33A" (wherever occurring).

17 At the end of paragraph 26(1)(a)

Add "including, where relevant, the factors taken into account in applying the public interest test".

18 Subsection 29(1)

Omit "a request for access to a document, or".

19 Subsection 29(3)

Omit "a request for access to a document, or".

20 Subsection 29(5)

Repeal the subsection, substitute:

       (5) For the avoidance of doubt, the discretion in subsection (4) to reduce or not impose a charge is to be exercised to further the object of this Act as set out in subsection 3(1), and in accordance with subsection 3(2).

21 Paragraph 30A(1)(a)

Omit "or under subsection 54(1) requesting a review of a decision relating to a document".

22 Paragraph 30A(1)(b)

Repeal the paragraph, substitute:

       (b) the agency or Minister considers that the fee or a part of the fee should be remitted for any reason;

23 Subsection 30A(1A)

Omit "30 days", substitute "14 days".

24 Subsection 30A(1B)

Omit "30 days", substitute "14 days".

25 Subsection 30A(2)

Omit "or 54(1), as the case may be".

26 Subsection 31(1)

Omit "30 days", substitute "14 days".

27 Paragraph 33(1)(b)

Repeal the paragraph, substitute:

       (b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government or an authority of a foreign government to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or

       (c) would divulge any information or matter communicated in confidence by an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth and would be contrary to the public interest.

28 Section 33A

Repeal the section, substitute:

33A Documents affecting relations with States
       (1) Subject to subsection (2), a document is an exempt document if disclosure of the document under this Act:

       (a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

       (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the

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Commonwealth or of an authority of the Commonwealth.

       (2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

29 Paragraph 34(1)(a)

Repeal the paragraph, substitute:

       (a) a document that was brought into existence for the purpose of submission to the Cabinet for its consideration;

30 Paragraph 34(1)(d)

Repeal the paragraph, substitute:

       (d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, details of which have not been officially published.

31 After subsection 34(1)

Insert:

       (1AA) This section does not apply to a document if at least 20 years have passed since the document came into existence.

32 At the end of section 34

Add:

       (7) In this section, officially published means published by authority of the Cabinet or of a Minister.

33 Section 35

Repeal the section.

34 Subsections 36(3) and (4)

Repeal the subsections.

Note:       The heading to section 36 is replaced with the heading "Documents revealing deliberative processes".

35 Subsection 36(5)

After "material", insert "or statistical information".

36 Subsections 36(8), (9) and (10)

Repeal the subsections.

37 Subsection 36A(1)

Omit "33A(2), 33A(4), 34(2), 34(4), 35(2), 35(4) and 36(3)", substitute "34(2) and 34(4)".

38 Paragraph 36A(1)(a)

Repeal the paragraph, substitute:

       (a) periods, up to a maximum of 2 years, during which such certificates may remain in force; and

39 At the end of subsection 37(2)

Add:

       ; or (d) prejudice the security of a place of lawful detention.

40 After subsection 37(2A)

Insert:

       (2B) This section does not apply to a document if:

       (a) the document consists of:

       (i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; or

       (ii) a document containing a general outline of the structure of a program adopted by an agency for dealing with any contravention or possible contravention of the law; or

       (iii) a report on the degree of success achieved in any program adopted by an agency for dealing with any contravention or possible contravention of the law; or

       (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law); or

       (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation; and

       (b) disclosure of the document would, on balance, be in the public interest.

41 Section 38

Repeal the section.

42 Paragraphs 40(1)(d) and (e)

Repeal the paragraphs, substitute:

       (d) prejudice the conduct of an internal or administrative investigation.

43 Section 41

Repeal the section, substitute:

41 Documents affecting personal privacy
       (1) A document is an exempt document under this Act if:

       (a) it contains personal information about any person (including a deceased person); and

       (b) its disclosure would constitute a breach of Information Privacy Principle 11(1), other than paragraph 11(1)(d) in so far as

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it relates to the release of information under this Act; and

       (c) its disclosure would not, on balance, be in the public interest.

       (2) Where a document which is the subject of a request to an agency or Minister under section 15 contains personal information about a person other than the applicant, the agency or Minister in judging the public interest in disclosure may have regard to any special relationship between that person and the applicant.

       (3) Subject to subsection (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

       (4) Where:

       (a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant; and

       (b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being;

the principal officer or Minister must disclose the information in a way that minimises the risk of detriment to the applicant's health or well-being.

       (5) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.

44 Subsection 42(1)

Repeal the subsection, substitute:

       (1) A document is an exempt document if it was created by, for, or on behalf of a person (the client) for the sole purpose of:

       (a) seeking or providing legal advice; or

       (b) use in legal proceedings.

       (1A) This section does not apply to a document if the client has waived legal professional privilege at common law.

45 Subsection 43(3)

After "undertaking" (second occurring), insert "or activity of a commercially competitive nature".

46 Section 43A

Repeal the section.

47 Section 44

Repeal the section.

48 Section 47

Repeal the section.

49 Section 47A

Repeal the section.

50 Section 48

Omit "to which access has been lawfully provided to the person, whether under this Act or otherwise,".

51 Paragraph 48(a)

Repeal the paragraph, substitute:

       (a) that is:

       (i) incorrect; or

       (ii) having regard to the purpose for which the information was collected, is used or is available for use by the agency or Minister--out of date, incomplete, misleading or irrelevant; and

52 Section 50

Repeal the section, substitute:

50 Amendment of records
       (1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

       (a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

       (b) the information is:

       (i) incorrect; or

       (ii) having regard to the purpose for which the information was collected, is used or is available for use by the agency or Minister--out of date, incomplete, misleading or irrelevant; and

       (c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the agency or Minister must take such steps as are reasonable in the circumstances to amend the record of information by altering the document or official document concerned to make the information complete, correct, up to date or not misleading or irrelevant.

       (2) The agency or Minister must add to the document or official document a note:


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       (a) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date, misleading or irrelevant; and

       (b) in a case where the agency or Minister is satisfied that the information is out of date--setting out such information as is required to bring the information up to date.

       (3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under subsection (1), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.

53 Subsection 51D(1)

Omit "30 days", substitute "14 days".

54 Paragraph 53(a)

Omit "33A(4), 34(4) or 35(4)", substitute "or 34(4)".

55 Paragraph 53(b)

Omit "33A, 34 or 35", substitute "or 34".

56 Subsection 54(1)

Omit "accompanied by any application fee in respect of the application".

57 Paragraph 54(1)(f)

Repeal the paragraph.

58 Subsections 55(2) and (3)

Repeal the subsections.

59 Paragraph 55(4)(a)

Omit "or (c)".

60 After paragraph 55(4)(b)

Omit "; or".

61 Paragraph 55(4)(c)

Repeal the paragraph.

62 Paragraph 56(1)(b)

Omit "30 days", substitute "14 days".

63 Paragraph 56(1A)(b)

Omit "30 days", substitute "14 days".

64 At the end of subsection 58(2)

Add "except if subsection (2A) applies".

65 After subsection 58(2)

Insert:

       (2A) The Tribunal may decide that access is to be granted to a document that is an exempt document, or contains exempt matter, because of section 43 if the Tribunal is of the opinion that the public interest requires that access to the document be granted.

       (2B) In making a decision under subsection (2A), the Tribunal may seek the opinion of the Auditor-General about whether the public interest requires that access to the document be granted.

66 Subsection 58(3)

Omit "33A, 34, 35 or 36", substitute "or 34".

67 Subsection 58(4)

Omit "33A, 34 or 35", substitute "or 34".

68 Subsection 58(5)

Repeal the subsection.

69 Subsection 58(5A)

Repeal the subsection, substitute:

       (5A) Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document as described in the request in respect of which a certificate is in force under subsection 33(4), the Tribunal shall, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the information as to the existence or non-existence of the document as so described would, if contained in a document of an agency cause that document of an agency to be an exempt document for a reason referred to in subsection 33(1).

70 Subsection 58A(1)

Omit "subsection 58(4), (5) or (5A)", substitute "subsection 58(4) or (5A)".

       Note: The heading to section 58A is altered by omitting ", (5)".

71 Paragraph 58A(2)(b)

Omit "or 33A(4)".

72 Subsection 58A(5)

Omit "33A, 34, 35 or 36", substitute "or 34".

73 Subsection 58A(6)

Omit "33A, 34 or 35", substitute "or 34".

74 Subsection 58A(8)

Omit "33A, 34, 35 or 36", substitute "or 34".

75 Paragraph 58A(9)(a)

Omit ", 33A or 36".

76 Paragraph 58A(9)(b)

Omit "or 35".

77 Subsection 58B(1)

Omit "subsection 58(4), (5) or (5A)", substitute "subsection 58(4) or (5A)".

       Note: The heading to section 58B is altered by omitting ", (5)".


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78 Subparagraph 58C(2)(a)(iv)

Omit "subsection 33(2) or 33A(2) or section 34 or 35", substitute "subsection 33(2) or section 34".

79 Subparagraph 58C(2)(a)(v)

Repeal the subparagraph.

80 Subparagraph 58C(2)(a)(vi)

Repeal the subparagraph, substitute:

       (vi) in the case where a certificate is in force under subsection 33(4)--that information as to the existence or non-existence of a document as described in a request would, if contained in a document of an agency, cause that document of an agency to be an exempt document for a reason referred to in subsection 33(1); and

81 Subsection 58C(2A)

Repeal the subsection.

82 Subsection 58E(1)

Omit "33A, 34, 35 or 36", substitute "or 34".

83 Subsection 58E(2)

Omit "subsection 58(4), (5) or (5A)", substitute "subsection 58(4) or (5A)".

84 Paragraph 60(c)

Omit "subsection 58(4), (5) or (5A)", substitute "subsection 58(4) or (5A)".

85 Subsection 64(1)

Omit "section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the document but".

86 Subsection 64(1)

After "may", insert ", at any time after the date by which an agency or Minister is required to have complied with section 37 of the Administrative Appeals Tribunal Act 1975,".

87 Subsection 64(3)

Omit "subsection 58(4), (5) or (5A)", substitute "subsection 58(4) or (5A)".

88 Paragraph 64(3)(a)

Omit "33A, 34, 35 or 36", substitute "or 34".

89 Paragraph 64(3)(b)

Omit "or 33A(4)".

90 Subsection 64(4)

Omit ", 34(3), 35(3) or 36(4)", substitute "or 34(3)".

91 At the end of section 64

Add:

       (7) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document and the document has been produced to the Tribunal other than in accordance with subsection (1) or (2), the Tribunal must, after inspecting the document, return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.

92 Section 65

Omit ", 33A, 34, 35 or 36", substitute "or 34".

93 After paragraph 66(2)

Insert:

       (2A) Where a person makes application to the Tribunal under section 55 for a review of a decision relating to access to a document and after the application is made:

       (a) the agency or Minister issues a certificate in relation to the document; or

       (b) the agency or Minister claims a new ground for refusing to grant access to the document and the Tribunal is not satisfied that the document is an exempt document on the ground or grounds claimed by the agency or Minister in refusing to grant access to the document;

the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.

94 Subsection 66(3)

After "subsection (1)", insert "or (2A)".

95 After Part VI

Insert:

Part VIA--The FOI Commissioner

Division 1--Establishment and functions of Commissioner

66A FOI Commissioner
       (1) The office of FOI Commissioner is established by this section.

       (2) The Commissioner is to be appointed by the

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Governor-General by written instrument.

       (3) The Commissioner is to be appointed on a full-time basis.

       (4) The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

66B Terms and conditions--general
        The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Attorney-General.

66C Remuneration
       (1) The Commissioner is to be paid the remuneration and allowances that are determined by the Remuneration Tribunal.

       (2) This section has effect subject to the Remuneration Tribunal Act 1975.

66D Leave of absence
       (1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

       (2) The Attorney-General may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Attorney-General determines.

66E Outside employment
        The Commissioner must not engage in paid employment outside the duties of the Commissioner's office without the approval of the Attorney-General.

66F Resignation
        The Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

66G Termination of appointment
       (1) The Governor-General may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.

       (2) The Governor-General must terminate the appointment of the Commissioner if:

       (a) the Commissioner:

       (i) becomes bankrupt; or

       (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

       (iii) compounds with his or her creditors; or

       (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

       (b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

       (c) the Commissioner engages, except with the Attorney-General's approval, in paid employment outside the duties of his or her office.

66H Acting FOI Commissioner
       (1) The Attorney-General may appoint a person to act as the Commissioner:

       (a) during a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or

       (b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

       (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

       (a) the occasion for the appointment had not arisen; or

       (b) there was a defect or irregularity in connection with the appointment; or

       (c) the appointment had ceased to have effect; or


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       (d) the occasion to act had not arisen or had ceased.

Division 2--Functions and powers of the Commissioner

66J Functions of the Commissioner
        Subject to this Division, the Commissioner has the following functions:

       (a) to review the compliance of agencies with this Act;

       (b) to prepare, and to publish in such manner as the Commissioner considers appropriate, guidelines for the use of agencies in complying with this Act;

       (c) to provide advice (with or without a request) to a Minister or an agency on any matter relevant to the operation of this Act;

       (d) to provide information or advice on request to an applicant or a third party on any matter relevant to an application for access to information under this Act;

       (e) to promote an understanding of the Act in the Commonwealth public sector and the community in general;

       (f) to make determinations about the scale of charges applying to requests for access to information under this Act;

       (g) to consult with the Privacy Commissioner, the Ombudsman, the Director-General of the Australian Archives and the Chief Executive of the Office for Government Online about the coordination of Commonwealth information policy and practice;

       (h) to make reports to the Attorney-General for presentation to Parliament.

66K Functions of Commissioner in relation to the preparation of guidelines
       (1) Without limiting paragraph 66J(b), the Commissioner must, as soon as practicable after the commencement of this Part, make guidelines in relation to the following:

       (a) access to an applicant's personal information, including where personal information about a third party is involved;

       (b) amendment of an applicant's personal information;

       (c) the application of the public interest test for the purposes of this Act;

       (d) the appropriate application of section 25;

       (e) the deletion of information following a request under section 48.

       (2) Before making guidelines under paragraph (1)(a) or (b), the Commissioner must consult the Privacy Commissioner.

66L Status of guidelines
       (1) A person authorised to make any decision under this Act must take any relevant guidelines issued by the Commissioner into account in making that decision.

       (2) The Tribunal must take any relevant guidelines issued by the Commissioner into account when making a decision.

       (3) Where a decision-maker has taken into account any relevant guidelines issued by the Commissioner, the decision-maker must provide a copy of the guidelines to the applicant.

66M Functions of Commissioner in relation to the provision of advice to a Minister or agency
        Without limiting paragraph 66J(c), the Commissioner must, as soon as practicable after the commencement of this Part, provide advice to ministers and agencies about:

       (a) maximising the use of information technology to provide better access to information; and

       (b) appropriate arrangements for access to information about services and functions provided to the public on behalf of the Commonwealth by organisations other than agencies.

66N Functions of the Commissioner in relation to promoting an understanding of the Act
        Without limiting paragraph 66J(e), the Commissioner must publish information about section 66 of this Act at least twice a year in a newspaper circulating generally in each State and Territory.


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66P Determination of charges
       (1) As soon as practicable after the commencement of this Part, and after consultation with the Chief Executive Officer of the Office for Government Online, the Commissioner must determine a scale of charges to be applied by agencies in relation to access to information under this Act.

       (2) In determining a scale of charges, the Commissioner must have regard to the information technology capability and the quality of records management systems that an agency could reasonably be expected to maintain.

       (3) The Commissioner must review the scale of charges after each period of 12 months and determine a fresh scale if, after consultation with the Chief Executive Officer of the Office for Government Online, the Commissioner believes it is appropriate to do so.

66Q Powers of the Commissioner
        The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under this Act.

Division 3--Reports by Commissioner

66R Annual Report
       (1) This section applies to the Commissioner's annual report for a financial year prepared under section 9 of the Commonwealth Authorities and Companies Act 1997.

       (2) The annual report must include:

       (a) statistics for each agency on its administration of this Act for the financial year;

       (b) information about the practices and pricing policies of agencies in relation to the sale of documents for purchase by the public;

       (c) information about the compliance by agencies with sections 8 and 9 of this Act;

       (d) an assessment of the quality of statements of reasons prepared by agencies for the purposes of this Act together with the identification of agencies which, in the Commissioner's view, have not met an appropriate standard;

       (e) an assessment of the use by agencies of conclusive certificates under this Act and the identification of any cases in which a Minister has failed to revoke a conclusive certificate despite a finding by the Tribunal that there are no reasonable grounds for the exemption claim;

       (f) an assessment of the adequacy of arrangements for access to information made by agencies in respect of services or functions which have been contracted out.

66S Reports to Attorney-General
       (1) The Commissioner may report to the Attorney-General on any matter relating to the functions of the Commissioner if the Commissioner believes it is appropriate to do so.

       (2) The Attorney-General must cause a report received under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General.

66T Review of Commissioner's functions
       (1) As soon as practicable after the fifth anniversary of the commencement of this Part, the Administrative Review Council (the Council) must prepare and give to the Attorney-General a report on the role of, and need for, the Commissioner.

       (2) The Attorney-General must cause the report prepared by the Council to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General.

96 Subsection 91(1)

Repeal the subsection, substitute:

       (1) Where access has been given to a document and the access was authorised by a Minister, or by an officer having authority, in accordance with section 23 or 54, to make decisions in respect of requests

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under this Act, no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister or an officer by reason of the authorising or giving of the access, and no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of the access lies against the author of the document or any other person by reason of that author or other person having supplied the document to an agency or Minister.

       (1AA) Subsection (1) applies whether or not access to a document was authorised or given pursuant to this Act, provided that the document would not have been an exempt document if it had been the subject of a request for access under this Act.

97 After subsection 91(1C)

Insert:

       (1D) Where access has been given to a document whether or not pursuant to this Act and:

       (a) the document would be an exempt document under this Act; and

       (b) the access was authorised by a Minister, or by an officer having authority, in accordance with section 23 or 54, to make decisions in respect of requests; and

       (c) the Minister or officer, as the case may be, in the bona fide exercise of his or her discretion, decided not to claim an exemption for the document;

no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister or an officer by reason of the authorising or giving of the access, and no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of the access lies against the author of the document or any other person by reason of that author or other person having supplied the document to an agency or Minister.

98 Paragraph 94(1)(a)

Omit "fixed by or in accordance with the regulations", substitute "fixed in accordance with a scale of charges determined by the Commissioner".

99 After paragraph 94(2)(a)

Insert:

       (aa) must not provide for a charge to be made for access to the personal information of an applicant;

100 Paragraph 94(2)(d)

Repeal the paragraph, substitute:

       (d) must not provide for a charge to be made for supervising the inspection by a person of any document for which a request for access has been made under this Act.

101 At the end of subsection 94(2)

Add:

       ; and (e) must provide for a charge to be made only in respect of documents to which access is to be granted.

102 Part I of Schedule 2

Omit "Aboriginal Land Councils and Land Trusts".

103 Part I of Schedule 2

Omit "Auditor-General".

104 Part I of Schedule 2

Omit "National Debt Commission".

105 Part I of Schedule 2

Omit "National Labour Consultative Council".

106 Division 1 of Part II of Schedule 2

Omit:

       Aboriginal and Torres Strait Islander Commercial Development Corporation, in relation to documents in respect of its commercial activities

       Albury-Wodonga Development Corporation, in relation to documents in respect of its commercial activities

       Attorney-General's Department, in relation to documents in respect of commercial activities it undertakes and in relation to documents in respect of commercial activities undertaken by the Australian Government Solicitor

107 Division 1 of Part II of Schedule 2

Omit:

       Australian Broadcasting Corporation, in relation to its program material

108 Division 1 of Part II of Schedule 2

Omit:

       Australian Pork Corporation, in relation to documents in respect of its commercial activities

       Australian Postal Corporation in relation to documents in respect of its commercial activities

109 Division 1 of Part II of Schedule 2

Omit:

       Australian Trade Commission, in relation to documents concerning the carrying out, in whole or in part, of overseas development projects


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110 Division 1 of Part II of Schedule 2

Omit:

       Comcare, in relation to documents in respect of its commercial activities

       Commonwealth Scientific and Industrial Research Organisation, in relation to documents in respect of its commercial activities

111 Division 1 of Part II of Schedule 2

Omit:

       Department of Defence, in relation to documents in respect of activities of the Defence Intelligence Organisation and the Defence Signals Directorate

112 Division 1 of Part II of Schedule 2

Omit "Department of the Treasury in relation to documents in respect of activities of the Australian Loan Council".

113 Division 1 of Part II of Schedule 2

Omit "and in respect of the commercial activities of the Royal Australian Mint".

114 Division 1 of Part II of Schedule 2

Omit:

       Export Finance and Insurance Corporation, in relation to documents concerning anything done by it under Part 4 or 5 of the Export Finance and Insurance Corporation Act 1991

115 Division 1 of Part II of Schedule 2

Omit "Federal Airports Corporation" and "in respect of determinations of aeronautical charges under the Federal Airports Corporation Act 1986".

116 Division 1 of Part II of Schedule 2

Omit ", in relation to documents in respect of its commercial activities and".

117 Division 1 of Part II of Schedule 2

Omit:

       Health Insurance Commission, in relation to documents in respect of its commercial activities

118 Division 1 of Part II of Schedule 2

Omit:

       National Health and Medical Research Council, in relation to documents in the possession of members of the National Health and Medical Research Council who are not persons appointed or engaged under the Public Service Act 1999

119 Division 1 of Part II of Schedule 2

Omit:

       Reserve Bank of Australia, in relation to documents in respect of its banking operations (including individual open market operations and foreign exchange dealings) and in respect of exchange control matters

120 Division 1 of Part II of Schedule 2

Omit:

       Special Broadcasting Service Corporation, in relation to its program material

121 Division 1 of Part II of Schedule 2

Omit:

       Telstra Corporation Limited in relation to documents in respect of its commercial activities

122 Division 2 of Part II of Schedule 2

Repeal the Division.

123 Part III of Schedule 2

Repeal the Part.

124 Schedule 3

Repeal the Schedule.

125 Schedule 4

Repeal the Schedule.

Freedom of Information (Fees and Charges) Regulations

126 Regulation 5

Repeal the regulation, substitute:

5 Application fees
        For the purposes of subsection 4(8) of the Act, an application fee of $30 is, subject to regulation 6, applicable in respect of an application under subsection 15(1) of the Act.

127 Transitional--regulations may be amended

This Schedule does not prevent the amendment or repeal of the Freedom of Information (Fees and Charges) Regulations by regulations made under the Freedom of Information Act 1982.