Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello MP)Schedule 7 - Freedom of Information Act 1982
The purpose of this schedule is to amend the Freedom of Information Act 1982 ('the FOI Act') to provide DIGO with a similar standing under that legislation to the other intelligence collection agencies. This is consistent with the recommendation by the Inquiry into Australian Intelligence Agencies in 2004 that DIGO be put on a proper legislative footing.
The various intelligence agencies are currently treated differently under the FOI Act. ASIO, ASIS and ONA are exempt agencies under the FOI Act by virtue of being listed in Part I of Schedule 2 to the FOI Act. Subsection 7(1) of the FOI Act provides that these agencies are exempt from the operation of the FOI Act. They do not have to comply with the procedural requirements of the Act. DSD and DIO, on the other hand, are treated as an integral part of the Department of Defence. The Department is the agency for FOI purposes. By virtue of subsection 7(2) and being listed in Part II of Schedule 2 to the FOI Act, documents relating to the activities of DSD and DIO are exempt. However, the Department of Defence must still comply with the procedural requirements of the FOI Act. That is, it must respond to an FOI request on behalf of DSD and DIO in accordance with the FOI Act timeframes, and give written reasons for refusing access to any documents which the applicant sought. These access decisions are subject to internal review and Administrative Appeals Tribunal merits review.
These amendments to the FOI Act result in all intelligence agencies being treated alike. DIGO is included in Part I of Schedule 2 and DSD and DIO are moved from Part II to Part I of Schedule 2. All intelligence agencies are then fully exempt from the operation of the FOI Act.
Items 1, 2 and 3
These items insert definitions of DIGO, DIO and DSD into the FOI Act.
Items 4 and 5
These items reflect the changed structure of Part 1 of Schedule 2 and moves the current list of exempt agencies from Part 1 to Division 1 of Part 1.
Item 6
This item creates a new subsection 7(1A) which provides clarity in relation to the definition of agency as it applies to a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act.
Item 7
This item amends the subsection to include reference to the Defence Imagery and Geospatial Organisation.
Item 8
This item amends the subsection to include new paragraphs 16(2)(c) and 16(2)(d) which provide for requests relating to a document that originated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act, to be transferred to that Department.
Item 9
This item amends the subsection to include new paragraphs 51C(2)(c) and 51C(2)(d) which provide for applications relating to a document that originated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act, to be transferred to that Department.
Item 10
This item inserts a new heading 'Division 1' after the heading of 'Part 1' in Schedule 2.
Item 11
This item amends Part I of Schedule 2 to add a new Division 2. Division 2 is comprised of the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Defence Signals Directorate.
Item 12
This item amends Part II of Schedule 2 to omit reference to the Department of Defence, in relation to documents in respect of activities of the Defence Intelligence Organisation and the Defence Signals Directorate.