Revised Explanatory Memorandum
(Circulated by authority of the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon. Philip Ruddock MP)Schedule 2 - Amendment of the Freedom of Information Act 1982
Item 1 Subsection 38(2)
103. This item makes a minor amendment to subsection 38(2) of the FOI Act as a consequence of the insertion of new subsection 38(3) by item 2 of this Schedule.
104. The effect of the amendment is to provide for an exception to the general rule in subsection 38(2) that where a person requests access to a document, the exemption in section 38 does not apply in relation to the document so far as it contains personal information about the person.
Item 2 At the end of section 38
105. This item inserts new subsection 38(3) at the end of section 38 of the FOI Act.
106. New subsection 38(3) provides an exception to the general rule in subsection 38(2) that where a person requests access to a document, section 38 does not apply in relation to the document so far as it contains personal information about the person. It provides that the section 38 exemption applies in relation to a document containing personal information about a person in certain limited circumstances. These circumstances are where the person requests access to the document and the disclosure of the document, or the information contained in the document, is prohibited under section 503A of the Migration Act 1958 as affected by section 503D (which treats agency details as protected information).
107. In effect this amendment places beyond doubt that a document protected under section 503A remains an exempt document even if it contains personal information. This means that the document need not be disclosed to the person requesting access to it under the FOI Act.
108. If a person requests access to a document that contains personal information about another person, the document is exempt from disclosure under subsection 38(1) where the disclosure of the document, or the information contained in the document, is prohibited under section 503A (as affected by section 503D).
Item 3 Schedule 3
109. This item inserts a reference to section 503A of the Migration Act 1958, as affected by section 503D, in Schedule 3 to the FOI Act.
110. The effect of this amendment is to ensure that a document, or information contained in a document, which is prohibited from being disclosed under section 503A (as affected by section 503D), is an exempt document under section 38 of the FOI Act.
111. Section 503D affects section 503A as it provides that agency details are to be treated as protected information and that section 503A applies to protect agency details from being divulged or communicated except as provided for in section 503A or proposed sections 503B or 503C (as contained in item 6 of Schedule 1 to the Bill).
Item 4 Application
112. This item inserts an application provision for the amendments made by Schedule 2 to the Bill.
113. Subitem (1) provides that the amendments made by Schedule 2 apply to a request for access to protected information made under the FOI Act:
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- on or after the commencement of the Schedule; or
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- before the commencement of the Schedule if no decision under the FOI Act in respect of the request has been made, or has been taken to be made, before the commencement of the Schedule.
114. Subitem (2) defines "protected information" for the purposes of the application provision. "Protected information" means:
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- information that is:
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- communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and
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- relevant to the exercise of a power under section 501, 501A, 501B or 501C of the Migration Act 1958; and
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- the agency details in relation to the protected information.
115. This definition captures the requirements set out in section 503A of the Migration Act 1958 for information to be protected and the extension of this protection of information under proposed new section 503D to include agency details.
116. Subitem (3) provides that in the definition of "protected information" in subitem (2):
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- "agency details" has the meaning given in subsection 503D(2) of the Migration Act 1958;
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- "authorised migration officer" has the meaning given in subsection 503A(9) of the Migration Act 1958; and
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- "gazetted agency" has the meaning given in subsection 503A(9) of the Migration Act 1958.