House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

SCHEDULE 3 - AMENDMENTS OF ATTORNEY-GENERAL'S DEPARTMENT ACTS

Part 1 - Bankruptcy

Division 1 - Amendments

Bankruptcy Act 1966

Item 1 - Subsection 5(1) (definition of Australia)

398. This item will repeal the definition of 'Australia' in subsection 5(1) of the Bankruptcy Act. The existing definition provides that the term 'Australia', when used in the geographical sense, does not include Norfolk Island. The effect of repealing the definition is that the definition of 'Australia' in the Acts Interpretation Act will apply to the Bankruptcy Act. As a result, all references to 'Australia' in the Bankruptcy Act will include Norfolk Island.

Item 2 - Subsection 5(1)

399. This item will insert new definitions of 'authority' and 'law' in subsection 5(1) of the Bankruptcy Act.

400. The term 'authority', in relation to a territory, is defined as an authority established by or under a law of the territory. This includes the holder of an office that is established by or under a law of the territory. By capturing the new definition of 'law' in relation to a territory, this amendment is intended to ensure that references to 'authority' in the Bankruptcy Act capture authorities of external territories, including those operating under applied laws.

401. The term 'law', in relation to a territory, is defined to mean a law in force in the territory. The example provides that a 'law' in relation to a territory includes applied laws of a state or other territory. This new definition is intended to ensure that references to the 'law' of a territory in the Bankruptcy Act include the laws of external territories, including applied state or territory laws.

Item 3 - Subsection 5(1) (definitions of Territory and Territory of the Commonwealth )

402. This item will repeal the definitions of 'Territory' and 'Territory of the Commonwealth' in subsection 5(1) of the Bankruptcy Act. The existing definition of 'Territory' provides that, except in the expression 'Territory of the Commonwealth', the term 'Territory' means the Australian Capital Territory and Northern Territory. The existing definition of 'Territory of the Commonwealth' is a territory referred to in section 122 of the Constitution, other than Norfolk Island.

403. The result of repealing these definitions is that the definitions of 'Territory' and 'Territory of the Commonwealth' in the Acts Interpretation Act will apply to the Bankruptcy Act. As a result, all references to 'Territory' and 'Territory of the Commonwealth' in the Bankruptcy Act will mean a territory referred to in section 122 of the Constitution. As a result, any reference to a territory in the Bankruptcy Act will consistently have the same application for Norfolk Island and other external territories as it does for the Australian Capital Territory and the Northern Territory. For consistency, further consequential amendments are made to change all existing references in the Bankruptcy Act to a 'Territory of the Commonwealth' to be references to a 'Territory' (see items 4, 5, 7, 9, 11 and 12).

Item 4 - Paragraph 7(2)(b)

404. This item will omit the words ', or of a Territory of the Commonwealth' in subsection 7(2)(b) of the Bankruptcy Act and substitute 'or of a Territory'. This amendment is consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. It is intended to ensure that the references to partnership and association laws in subsection 7(2)(b) apply to Norfolk Island in the same way as they apply to other territories.

Item 5 - Section 9A

405. This item will repeal section 9A of the Bankruptcy Act. Section 9A provides that the Bankruptcy Act does not extend to Norfolk Island. Repealing section 9A will ensure that the Bankruptcy Act extends to Norfolk Island.

Item 6 - Subsection 20D(8) (paragraph (e) of the definition of public securities )

406. This item will omit the words 'of the Commonwealth' in paragraph (e) of the definition of 'public securities' in subsection 20D(8) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. This amendment is intended to ensure that the definition of public securities applies to Norfolk Island in the same way as it applies to other territories.

Item 7 - Subsection 54H(1)

407. This item will omit ', or of a Territory of the Commonwealth' and substitute 'or of a Territory' in subsection 54H(1) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. This amendment is intended to ensure that the reference to laws entitling a person to retain or deduct money payable or owing applies to Norfolk Island in the same way as it applies to other territories.

Item 8 - Subsection 128(2)

408. This item will insert the words 'or authority' after 'officer' in subsection 128(2) of the Bankruptcy Act. This item is intended to capture Norfolk Island office holders, who will be included under the new definition of 'authority' in item 2. This item therefore ensures that a trustee can file a memorandum claiming property under subsection 128(2) of the Bankruptcy Act with relevant authorities and office holders on Norfolk Island, including those operating under applied laws.

Item 9 - Paragraph 139G(1)(b)

409. This item will omit ', or of a Territory of the Commonwealth' and substitute 'or of a Territory' in paragraph 139G(1)(b) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. This item is intended to ensure that the reference to laws requiring the registration of the creation, transfer or transmission of estates in property applies to Norfolk Island in the same way as it applies to other territories.

Item 10 - Subsections 139ZN(4) and (5) and 139ZR(4) and (5)

410. This item will insert the words 'or authority' after 'officer' in subsections 139ZN(4) and (5) and 139ZR(4) and (5) of the Bankruptcy Act. This item is intended to capture Norfolk Island office holders, who will be included in the new definition of 'authority' in item 2. This item therefore ensures that the Official Receiver can lodge and have registered a certificate relating to a charge over property under sections 139ZN and 139ZR with relevant authorities and office holders on Norfolk Island, including those operating under applied laws.

Item 11 - Subsection 262(2)

411. This item will omit the words 'Territories of the Commonwealth' and substitute 'Territories' in subsection 262(2) of the Bankruptcy Act. This amendment is consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. This item is intended to ensure that provisions relating to the swearing of affidavits in section 262 apply to Norfolk Island in the same way as they apply to other territories.

Item 12 - Amendments of listed provisions - Territory of the Commonwealth

412. This item will omit the words 'Territory of the Commonwealth' and substitute 'Territory' in the below provisions of the Bankruptcy Act:

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paragraph (b) of the definition of 'company' in subsection 5(1)

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paragraph (c) of the definition of 'magistrate' in subsection 5(1)

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paragraph (a) of the definition of 'maintenance order' in subsection 5(1)

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subsections 20D(6) and (7)

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subparagraph (b)(iv) of the definition of 'public securities' in subsection 20D(8)

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paragraph (c) of the definition of 'public securities' in subsection 20D(8)

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subsections 58(2), 59(5), 74(7) and 91(5)

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the definition of 'charge' in subsection 118(12)

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subsections 122(4A) and 128(1)

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paragraph 129(4A)(a)

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subsections 132(3) and 133(1) and (3)

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paragraph 133(11)(a)

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subsections 136(2) and 139(2)

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sub-subparagraph (b)(iv)(A) of the definition of 'income' in subsection 139L(1)

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subparagraph 153(2)(a)(ii)

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paragraph 185F(1)(c)

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subsections 220(6), 249(2), 250(5) and 262(1), and

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paragraph 262(2)(a).

413. These amendments are consequential to the repeal of the definitions of 'Territory' and 'Territory of the Commonwealth' by item 3. This item is intended to ensure that the references in the provisions to various laws, officers, bodies and other authorities of a territory apply to Norfolk Island in the same way as they apply to other territories.

Division 2 - Application and transitional provisions

Item 13 - Definitions

414. This item will provide the following definitions that are used in Division 1 of this Part, which contains the application, saving and transitional provisions dealing with the amendments to the Bankruptcy Act:

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'Commonwealth Bankruptcy Act' is defined as the Bankruptcy Act, as amended by Division 1 of Part 1 of Schedule 3

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'Commonwealth Official Trustee' is defined as the Official Trustee within the meaning of the Commonwealth Bankruptcy Act

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'Norfolk Island Bankruptcy Act' is defined as the Bankruptcy Act 2006 (NI)

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'Norfolk Island official trustee' is defined as the official trustee, within the meaning of the Norfolk Island Bankruptcy Act as in force immediately before the transition time

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'transitional bankrupt' is defined as having the meaning given by item 14, and

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'transition time' is defined as the commencement of item 13.

Item 14 - Scope

415. This item will provide that Part 1 of Schedule 3 to the Bill applies in relation to a person, known as a 'transitional bankrupt', if:

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a determination of bankruptcy was made against the person under the Norfolk Island Bankruptcy Act, and

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immediately before the transition time (defined in item 13), the person had not obtained a certificate of discharge of that bankruptcy and the determination of bankruptcy had not been annulled.

416. This item is intended to ensure that the transitional arrangements in Part 1 of Schedule 3 to the Bill will apply to any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of transitioning from the Norfolk Island Bankruptcy Act to the Commonwealth Bankruptcy Act.

Item 15 - Transitional provisions - general

Application of amendments

417. Subitem 15(1) will provide that the amendments made by Division 1 of Part 1 of Schedule 3 to the Bill apply in relation to a transitional bankrupt (defined in item 13). Subitem 15(1) is intended to ensure that the extension of the Commonwealth Bankruptcy Act to Norfolk Island by Division 1 of Part 1 of Schedule 3 applies to persons who were made bankrupt under the Norfolk Island Bankruptcy Act and who remain bankrupt at the time of transitioning from the Norfolk Island Bankruptcy Act to the Commonwealth Bankruptcy Act.

How the Commonwealth Bankruptcy Act applies

418. Subitem 15(2) will set out how the Commonwealth Bankruptcy Act applies to things done for the purposes of the Norfolk Island Bankruptcy Act in relation to a transitional bankrupt. This item provides that anything done before the transition time by a person mentioned in column 1 of the table under, or for the purposes of, the Norfolk Island Bankruptcy Act (in relation to a transitional bankrupt) is taken to have been done by the person mentioned in column 2 under, or for the purposes of, the corresponding provision of the Commonwealth Bankruptcy Act. This item is intended to ensure that anything done during the administration of a bankruptcy under the Norfolk Island Bankruptcy Act is considered valid and has effect under the Commonwealth Bankruptcy Act.

419. Table item 1 provides that anything done by a judge (or judges) of the Supreme Court of Norfolk Island under the Norfolk Island Bankruptcy Act is taken to have been done by a judge (or judges) of the Federal Court of Australia under the Commonwealth Bankruptcy Act.

420. Table item 2 provides that anything done by the registrar (within the meaning of the Norfolk Island Bankruptcy Act as in force immediately before the transition time) under the Norfolk Island Bankruptcy Act is taken to have been done under the Commonwealth Bankruptcy Act by whichever of the following persons that has the function of doing things of that kind:

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the Chief Executive Officer and Principal Registrar of the Federal Court of Australia

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the Official Receiver, or

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any other person.

421. Table item 3 provides that anything done by the Norfolk Island official trustee under the Norfolk Island Bankruptcy Act is taken to have been done by the Commonwealth Official Trustee under the Commonwealth Bankruptcy Act.

422. Table item 4 provides that anything done by any other person under the Norfolk Island Bankruptcy Act is taken to have been done by a person who has the function of doing things of that kind under the Commonwealth Bankruptcy Act.

Determinations of bankruptcy

423. Subitem 15(3) will provide that, without limiting subitem 15(2), the Commonwealth Bankruptcy Act applies to a determination of bankruptcy under the Norfolk Island Bankruptcy Act in relation to a transitional bankrupt as if:

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the determination of bankruptcy were a sequestration order made under the Commonwealth Bankruptcy Act, and

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the date of bankruptcy were the date of the order of the determination of bankruptcy.

424. This item is intended to provide certainty about: (i) the effect of a determination of bankruptcy under the Norfolk Island Bankruptcy Act, to ensure that a transitional bankrupt is considered to have been made bankrupt for the purposes of the Commonwealth Bankruptcy Act, and (ii) the date of bankruptcy, to ensure that the length of a transitional bankrupt's bankruptcy can be calculated (particularly for the purposes of determining the date of discharge from bankruptcy).

425. Subitem 15(4) provides that, where the Commonwealth Bankruptcy Act applies to a determination of bankruptcy pursuant to subitem 15(3), the Official Receiver must enter the following information on the National Personal Insolvency Index:

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particulars of the transitional bankrupt, to the extent that these are disclosed on the determination of bankruptcy

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the date of the bankruptcy

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the name of the petitioning creditor

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the name of the transitional bankrupt's trustee

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the date the transitional bankrupt provided the statement required for the purposes of paragraph 51(b) of the Norfolk Island Bankruptcy Act, and

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any other available information required to be entered on the National Personal Insolvency Index, in relation to a sequestration order, by the Commonwealth Bankruptcy Act and regulations.

426. Consistent with the requirement that all bankruptcies under the Commonwealth Bankruptcy Act must be recorded on the National Personal Insolvency Index, this item is intended to ensure that there is an equivalent record of the bankruptcies of transitional bankrupts.

427. Subitem 15(5) will provide that, on written notice from the Commonwealth Official Receiver, the Registrar of Norfolk Island Supreme Court and/or the Norfolk Island official trustee must provide the information required under subitem 15(4) to be entered on the National Personal Insolvency Index. This item is intended to ensure that the Commonwealth Official Trustee has the information needed to comply with subitem 15(4).

Discharge from bankruptcy

428. Subitem 15(6) will provide that a transitional bankrupt is discharged from bankruptcy at the transition time if the date of the determination of their bankruptcy occurred 3 years or more before the transition time. The effect of this item is that a transitional bankrupt who has been bankrupt for over 3 years will be automatically discharged. This is consistent with section 149 of the Commonwealth Bankruptcy Act, which provides for automatic discharge after a 3 year period.

Item 16 - Transitional provisions - transfer of records

429. This item will provide that the Norfolk Island official trustee must, as soon as practicable after the transition time, give the Commonwealth Official Trustee the following records:

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any accounts in relation to a transitional bankrupt transmitted by an elected trustee to the Norfolk Island official trustee before the transition time (under section 12 of the Norfolk Island Bankruptcy Act)

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any books in relation to a transitional bankrupt that are kept by the Norfolk Island official trustee immediately before the transition time (under section 16 of the Norfolk Island Bankruptcy Act), and

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a copy of the statement (if any) delivered before the transition time by a transitional bankrupt in compliance with an order of determination of bankruptcy (under paragraph 51(b) of the Norfolk Island Bankruptcy Act).

430. This item is intended to ensure that the Commonwealth Official Trustee has sufficient information about the status and particulars of a transitional bankrupt to administer the bankruptcy of a transitional bankrupt under the Commonwealth Bankruptcy Act.

Item 17 - Transitional rules

431. This item will provide the minister a rule-making power to deal with matters of a transitional nature that may arise in the process of extending the Commonwealth bankruptcy system to Norfolk Island. Subitem 17(1) will provide that the minister may, by legislative instrument, make rules prescribing matters of a transitional nature, including savings and application provisions, relating to:

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the amendments of the Commonwealth Bankruptcy Act made by Division 1 of Part 1 of Schedule 3 to the Bill, and

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the repeal of the Norfolk Island Bankruptcy Act, in the event that Act is repealed.

432. This item will provide adequate flexibility to ensure a smooth transition to the Commonwealth bankruptcy system. Rules made under item 17 will be limited to transitional matters and will make modifications that are necessary and appropriate to ensure effective and expedient administration of any bankruptcies transitioned between systems.

433. Subitem 17(2) will provide that the minister's rule-making power is subject to limits and safeguards. The minister will not have the power to make a rule which would:

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create an offence or civil penalty

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provide powers of arrest or detention or entry, search or seizure

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impose a tax

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set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act, or

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directly amend the text of this Act.

434. Subitem 17(3) will provide that Part 1 of Schedule 3 to the Bill has effect subject to any rules made under item 17. This ensures that if modifications are made by rules, the transitional arrangements in Part 1 of Schedule 3 to the Bill will apply as modified.

Part 2 - Freedom of information

Division 1 - Amendments

Freedom of Information Act 1982

Item 18 - Subsection 4(1) (definition of Australia )

435. This item repeals the existing definition of 'Australia' from subsection 4(1) of the FOI Act. This definition includes Norfolk Island in the definition of 'Australia' when used in a geographical sense. This definition was made redundant by virtue of an amendment to the Acts Interpretation Act in 2016 which now provides that the definition of 'Australia' means the Commonwealth of Australia, and, when used in a geographical sense, includes Norfolk Island.

Item 19 - Subsection 4(1) (definition of Norfolk Island authority )

436. This item substitutes a revised definition of 'Norfolk Island authority' in subsection 4(1) of the FOI Act. The new definition includes a body established for a public purpose by or under a Norfolk Island law, other than a law providing for the incorporation of associations or companies, for instance the Associations Incorporation Act 2005 (NI) or the Norfolk Island Companies Act. It also means a person holding or performing the duties of an office established by or under a Norfolk Island law or an appointment made under a Norfolk Island law. A body or person that would otherwise fall within this definition may be exempted by a regulation made for the purposes of new subsection 7(2AB) of the FOI Act. This amendment will clarify that this new definition includes bodies such as the Norfolk Island Regional Council, which is established for a public purpose in Norfolk Island under an applied NSW law, the Local Government Act 1993 (NSW)(NI). It does not include, however, a state or territory body or office, established or appointed under a state or territory law as in force in that state or territory, which may exercise powers in Norfolk Island under an applied state or territory law.

437. The amendment also removes reference to a public sector agency (within the meaning of the Public Sector Management Act 2000 (NI)). The Public Sector Management Act has been repealed.

Item 20 - Subsection 4(1) (definition of Norfolk Island enactment )

438. This item repeals the definition of 'Norfolk Island enactment' from subsection 4(1) of the FOI Act. The existing definition, which means an enactment within the meaning of the Norfolk Island Act or an instrument made under such an enactment (as amended), is no longer necessary following the insertion of the new definition of 'Norfolk Island law'.

Item 21 - Subsection 4(1)

439. This item inserts a new definition of 'Norfolk Island law' into subsection 4(1) of the FOI Act to mean a law in force in Norfolk Island other than an Act or an instrument under an Act. This new definition will include an enactment within the meaning of the Norfolk Island Act or an instrument made under such an enactment (as amended) as well as any applied laws in force in Norfolk Island under section 18A of the Norfolk Island Act. Acts and instruments made under Acts are excluded from this definition to avoid overlapping with the existing definition of 'enactment' in subsection 4(1). Existing references in the FOI Act to 'Norfolk Island enactment' will be replaced by appropriate references to 'Norfolk Island law'.

Item 22 - Subsection 4(1) (paragraph (c) of the definition of principal officer )

440. This item repeals and substitutes paragraph (c) of the definition of 'principal officer' in subsection 4(1) of the FOI Act. New paragraph (c) of this definition provides that 'principal officer' means in relation to a Norfolk Island authority the person responsible for the day-to-day management of the authority. The meaning of 'Norfolk Island authority' is amended by item 10, and includes a body established for a public purpose by or under a Norfolk Island law (other than a law providing for the incorporation of associations or companies), or a person holding or performing the duties of an office established by or under a Norfolk Island law or an appointment made under a Norfolk Island law. The amendment also removes a redundant reference to the Public Service Act 2014 (NI) which has been repealed.

Item 23 - Subsection 4(3A)

441. This item amends subsection 4(3A) of the FOI Act to substitute a reference to 'Norfolk Island enactment' with a reference to 'Norfolk Island law'. This amendment is consequential to the amendments made by items 20 and 21.

Item 24 - Paragraph 4(3B)(d)

442. This item amends paragraph 4(3B)(d) of the FOI Act to substitute a reference to 'Norfolk Island enactment' with a reference to 'Norfolk Island law'. This amendment is consequential to the amendments made by items 20 and 21.

Item 25 - Section 4B

443. This item repeals section 4B of the FOI Act, which provides that this Act extends to Norfolk Island.. This provision is now redundant in light of the operation of subsection 18(1) of the NI Act which, since amendments to this Act commencing in 2016, has provided that an Act or a provision of an Act extends to Norfolk Island of its own force except so far as the Act or another Act expressly provides otherwise.

Item 26 - Subparagraph 5(2)(c)(ii)

444. This item repeals and substitutes new subparagraph 5(2)(c)(ii) of the FOI Act, which replaces a reference to 'Norfolk Island enactment' with a reference to 'Norfolk Island law'. This amendment is consequential to the amendments made by items 20 and 21.

Item 27 - After subsection 7(2AA)

445. This item inserts new subsection 7(2AB) into the FOI Act which provides that a body or person may be prescribed by the regulations for the purposes of this subsection if the body or person would, if not so prescribed, be a Norfolk Island authority; and the minister is satisfied that the body or person is subject to a law that provides equivalent, or substantially similar, requirements relating to freedom of information as are provided by the FOI Act.

446. The effect of this new subsection is that a body or person that would otherwise fall within the definition of 'Norfolk Island authority' may be exempted by a regulation from the operation of the FOI Act if the minister is satisfied that the relevant body or person will be subject to a law that provides equivalent, or substantially similar, requirements relating to freedom of information as are provided by the FOI Act.

447. This power to exempt a Norfolk Island authority from the operation of the FOI Act is only likely to be used in very limited circumstances and only when the minister is satisfied that the relevant body or person will be subject to a freedom of information law that provides equivalent, or substantially similar, requirements as provided by the FOI Act. This may be the case, for instance, where the relevant Norfolk Island authority is subject to an applied state or territory law which deals with freedom of information for public bodies, such as the Government Information (Public Access) Act 2009 (NSW) which regulates access to information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant Norfolk Island authority to be subject to the freedom of information requirements of the applied state or territory law rather than the FOI Act.

Item 28 - Subparagraph 8(2)(d)(ii)

448. Paragraph 8(2)(d) of the FOI Act provides for the publication by agencies of the details of its statutory appointments. This item repeals and substitutes a new subparagraph 8(2)(d)(ii) which replaces a reference to the repealed Public Service Act 2014 (NI) with a reference to the appointments of officers made under Norfolk Island laws, other than appointments of officers providing services at a level equivalent to those provided by APS employees. This means, equivalent with the arrangements with respect to statutory appointments under Commonwealth Acts, that Norfolk Island authorities will only be required to publish the details of statutory appointments who are not ordinary officers and staff of the agency (including any senior executive staff).

449. The operation of this subparagraph is subject to new subsection 7(2AB) which provides that a body or person, which would otherwise be a Norfolk Island authority, may be exempted by the regulations for the purposes of this subsection (see item 27 above).

Item 29 - Subsection 8(5)

450. This item inserts a reference to 'Norfolk Island law' into subsection 8(5) of the FOI Act which clarifies that this section, which deals with the publication of information by an agency, applies to a function or power of an agency whether or not the agency has the function or power under an enactment or a Norfolk Island law. This amendment is consequential to the amendments made by items 20, 21 and 30.

Item 30 - Subsection 8(6)

451. This item repeals subsection 8(6) of the FOI Act, including the heading, but not the notes to this section. This subsection provides that, in section 8, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by item 20, 21 and 29.

Item 31 - Subsection 8C(2)

452. Section 8C of the FOI Act deals with restrictions on information to be published. This item repeals and substitutes subsection 8C(2) and includes a new reference to 'a Norfolk Island law'. An agency is not required to publish particular information under Part II of the FOI Act if a Norfolk law restricts or prohibits it publication. This amendment is consequential to the amendments made by item 20 and 21.

Item 32 - Subsection 8C(4)

453. This item repeals subsection 8C(4) of the FOI Act. This subsection provides that, in section 8C, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by item 20, 21 and 31.

Item 33 - Paragraph 12(1)(b)

454. This item repeals and substitutes paragraph 12(1)(b) of the FOI Act and includes a new reference to 'a Norfolk Island law'. The effect of this amendment is that a person is not entitled to obtain access under Part 3 of the FOI Act to a document that is open to public access, as part of a public register or otherwise, in accordance with an enactment or a Norfolk Island law where that access is subject to a fee or other charge. This amendment is consequential to the amendments made by item 20 and 21 and 34.

Item 34 - Subsection 12(3)

455. This item repeals subsection 12(3) of the FOI Act. This subsection provides that, in section 12, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by item 20, 21 and 33.

Items 35, 36, 37 and 38 - Section 38

456. Items 35 and 36 insert appropriate references to 'Norfolk Island law' into subsection 38(1) of the FOI Act. This has the effect of making a document an exempt document if disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law. These amendments are consequential to the amendments made by item 20, 21 and 38.

457. Item 37 amends subsection 38(1A) to insert a reference to 'a Norfolk Island law' in relation to a person's right of access to a document.

458. Item 38 repeals subsection 38(4). This subsection provides that, in section 38, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by items 20, 21, 35, 36 and 37.

Item 39 - Paragraphs 47B(d) and (f)

459. This item amends paragraphs 47B(d) and (f) of the FOI Act to substitute references to 'an authority of Norfolk Island' with 'a Norfolk Island authority'. This amendment is consequential to the amendment made by item 19.

Item 40 and 41 - Section 55M

460. Item 40 amends paragraph 55M(2)(a) of the FOI Act to insert a reference to 'or a Norfolk Island law'. Section 55M deals with limitations on the Information Commissioner's power to amend records of opinions in a review decision and this amendment is consequential to the amendments made by item 20, 21 and 41.

461. Item 41 repeals subsection 55M(3). This subsection provides that, in section 55M, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by items 20, 21 and 40.

Items 42 and 43 - Section 58AA

462. Item 42 amends paragraph 58AA(2)(a) of the FOI Act to insert a reference to 'or a Norfolk Island law'. Section 58AA deals with limitations on the Administrative Appeals Tribunals' power to amend records of opinions in a review decision and this amendment is consequential to the amendments made by item 20, 21 and 43.

463. Item 43 repeals subsection 58AA(3). This subsection provides that, in section 58AA, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by items 20, 21 and 42.

Items 44 and 45 - Section 74

464. Section 74 of the FOI Act provides for the transfer of Information Commissioner investigations to the Ombudsman. Item 44 substitutes a reference to 'Norfolk Island enactment' with a reference to 'Norfolk Island law' in paragraph 74(1)(b) and item 45 makes the equivalent substitution in subsection 74(6). These amendments are consequential to the amendments made by items 20 and 21.

Items 46 and 47 - Section 89D

465. Item 46 amends paragraph 89D(3)(a) of the FOI Act to insert a reference to 'or a Norfolk Island law'. Section 89D deals with limitations on the Information Commissioner's power to recommend amendments of decision records and this amendment is consequential to the amendments made by item 20, 21 and 47.

466. Item 47 repeals subsection 89D(4). This subsection provides that, in section 89D, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by items 20, 21 and 46.

Items 48 and 49 - Section 89J

467. Item 48 amends paragraph 89J(2)(a) of the FOI Act to insert a reference to 'or a Norfolk Island law'. Section 89J deals with limitations on amending records in reports made under the Ombudsman Act 1976 and this amendment is consequential to the amendments made by item 20, 21 and 49.

468. Item 40 repeals subsection 89J(3). This subsection provides that, in section 89D, 'enactment include a Norfolk Island enactment.' This repeal is consequential to the amendments made by items 20, 21 and 48.

Division 2 - Application, saving and transitional provisions

Item 50 - Application-Amendments of the Freedom of Information Act 1982

Information publication scheme

469. Subitem 50(1) provides that the amendments of Division 2 of Part II of the FOI Act made by Division 1 of Part 2 of Schedule 3 to the Bill apply, in relation to the publication of information under that division, after the commencement time.

Requests and applications

470. Subitem 50(2) provides that the amendments of the FOI Act made by Division 1 of Part 2 of Schedule 3 to the Bill apply, in relation to requests for access to documents made under section 15 of the FOI Act and applications made under section 48 of the FOI Act, after the commencement time.

471. Subitem 50(3) provides that in this item 'commencement time' means the time that Part 2 of Schedule 3 to the Bill commences.

472. Item 50 is intended to avoid any doubt that the amendments to the FOI Act will not apply retrospectively to any entities affected by these changes.

Part 3 - Privacy

Division 1 - Amendments

Privacy Act 1988

Item 51 - Subsection 6(1) (after paragraph (c) of the definition of agency )

473. This item inserts new paragraph 6(1)(ca) into the definition of 'agency' in the Privacy Act. This has the effect of including in this definition a body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law of a state or territory as in force in an external territory. Incorporated companies, societies and associations are exempted from this definition as are any bodies exempted by the minister under a legislative instrument made for the purposes of new subsection 6(5A). This amendment will clarify the application of the Privacy Act to public bodies established under these laws as in force in the external territories, for instance a local government body established under an applied state law. It does not include, however, a state or territory body or tribunal, established under a state or territory law as in force in that state or territory, which may exercise powers in an external territory under an applied state or territory law. A state or territory body or tribunal exercising such powers would fall within the existing definition of 'State or Territory authority' in section 6C of the Privacy Act.

Item 52 - Subsection 6(1) (after paragraph (e) of the definition of agency )

474. This item inserts new paragraph 6(1)(ea) in the definition of 'agency' in the Privacy Act. This has the effect of including in this definition a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a state or territory as in force in an external territory, other than an office or appointment exempted by the minister under a legislative instrument made for the purposes of new subsection 6(5A). This amendment will clarify the application of the Privacy Act to public offices established or appointed under laws as in force in the external territories, for instance officials appointed by the Commonwealth territories minister under an applied state law. It does not include, however, a state or territory official, appointed under a state or territory law as in force in that state or territory, who may exercise powers in an external territory under an applied state or territory law. A state or territory official exercising such powers would fall within the existing definition of 'State or Territory authority' in section 6C of the Privacy Act.

Item 53 - Subsection 6(1) (paragraph (ha) of the definition of agency )

475. This item repeals and substitutes paragraph (ha) of the definition of 'agency' to replace a reference to 'a Norfolk Island agency' with a reference to 'a court of Norfolk Island'. Norfolk Island courts, such as the Supreme Court of Norfolk Island, are currently included in the definition of 'Norfolk Island agency' and this amendment is consequential to the repeal of the definition of 'Norfolk Island agency' in item 57.

Item 54 - Subsection 6(1) (paragraph (c) of the definition of Australian law )

476. This item repeals existing paragraph (c) of the definition of 'Australian law', which refers to 'a Norfolk Island enactment' and substitutes a new paragraph to include any other law in force in the Jervis Bay Territory or an external territory in this definition. This amendment will clarify the operation of the Privacy Act and the APPs with respect to these applied state and territory laws. The present definition of 'Australian law', inserted into the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 does not expressly refer to applied state and territory laws, although these laws would have been included in the ordinary meaning of 'law' for the purposes of the former Information Privacy Principles, which were replaced by the APPs in 2014.

Item 55 - Subsection 6(1) (definition of Commonwealth enactment )

477. This item repeals the definition of 'Commonwealth enactment' in subsection 6(1) of the Privacy Act. The definition is no longer needed as a result of the amendment in item 56 which inserts a new definition of 'Commonwealth law'.

Item 56 - Subsection 6(1)

478. This item inserts a new definition of 'Commonwealth law' in section 6. The definition means an Act other than the Northern Territory (Self-Government) Act 1978 or an Act providing for the administration or government of an external Territory or the Australian Capital Territory (Self-Government) Act 1988. The definition includes legislative instruments such as an ordinance of the Australian Capital Territory or of an external territory. It also includes laws made by the former Norfolk Island Legislative Assembly and continued in force by section 16 of 16A of the NI Act. The new definition of 'Commonwealth law' combines the laws presently covered by the definitions of 'Commonwealth enactment' and 'Norfolk Island enactment' which will be repealed. Existing references in the Privacy Act to 'a law of the Commonwealth', 'Commonwealth enactment' and 'Norfolk Island enactment' will be replaced by references to 'Commonwealth law'.

Item 57 - Subsection 6(1)

479. This item repeals the definitions of 'enactment', 'Norfolk Island agency' and 'Norfolk Island enactment' in subsection 6(1) of the Privacy Act. These repeals are consequential to the amendments of the definitions of 'agency', 'Australian law' and the new definition of 'Commonwealth law'.

Item 58 - Paragraphs 6(5)(c) and (ca)

480. This item repeals paragraphs 6(5)(c) and (ca) of the Privacy Act and substitutes a new paragraph 6(5)(c) with the effecting of providing, for the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of an office established by or under a Commonwealth law, or an applied state or territory law in an external territory, for the purposes of an agency. These amendments are consequential to the amendments made by items 56 and 57.

Item 59 - Paragraphs 6(5)(e) and (f)

481. This item repeals paragraphs 6(5)(e) and (f) of the Privacy Act and substitutes new paragraph 6(5)(e) with the effecting of providing, for the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of an office or member of a tribunal that is established by or under a Commonwealth law, or an applied state or territory law in an external territory and that is prescribed by the regulations for the purposes of this paragraph. These amendments are consequential to the amendments made by items 56 and 57.

Item 60 - After subsection 6(5)

482. This item inserts new subsection 6(5A) into section 6 of the Privacy Act which provides that the minister may, by legislative instrument, exempt a body, office or appointment for the purposes of new paragraphs 6(1)(ca) or 6(1)(ea) of the definition of 'agency' in subsection (1).

483. It is anticipated that the minister would only exempt, by legislative instrument, such a body, office or appointment if satisfied that the relevant body, office or appointment would be subject to a law that provides equivalent, or substantially similar, requirements relating to the use of personal information as are provided by the Privacy Act. This may be the case, for instance, where the relevant body, office or appointment is subject to an applied state or territory law which deals with the use of personal information by public bodies, such as the Privacy and Personal Information Protection Act 1998 (NSW) which regulates the use of personal information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant external territory body, office or appointment to be subject to the privacy law requirements of the applied state or territory law rather than the Privacy Act.

Item 61 - Paragraphs 7(1)(d) and (e)

484. This item removes references to 'a Norfolk Island agency or' from paragraphs 7(1)(d) and (e) of the Privacy Act to reflect the amendments to the definition of 'agency' and the insertion of the new definition of 'Commonwealth law'. These amendments are consequential to the amendments made by items 56 and 57.

Item 62 - Paragraph 8(1)(b)

485. This item amends paragraph 8(1)(b) of the Privacy Act to substitute a reference to 'Commonwealth enactment or a Norfolk Island enactment' with a reference to 'Commonwealth law, or a law of a State or Territory that applies in an external Territory'. This reflects the insertion of the new definition of 'Commonwealth law' and provides that for the purposes of this Act, actions done by, or information disclosed to, a person on behalf of an unincorporated body established by or under a law of a state or territory applied in an external territory is to be treated as having been done by, or disclosed to, the agency.

Item 63 - Subsection 11(3)

486. This item amends subsection 11(3) of the Privacy Act to substitute a reference to 'Commonwealth enactment or a Norfolk Island enactment' with a reference to 'Commonwealth law, or a law of a State or Territory that applies in an external Territory'. This amendment is consequential to the repeal of the definitions of 'Commonwealth enactment' and 'Norfolk Island enactment' in items 55, 56 and 57.

Item 64 - Section 37 (table items 5A and 5B)

487. This item repeals items 5A and 5B from the table in section 37 of the Privacy Act to remove references to the repealed Public Sector Management Act 2000 (NI) and to 'Norfolk Island agency', the definition of which has also been repealed from this Act. New item 5A is inserted into the table to designate the person responsible for the day-to-day management of a body or tribunal (other than an incorporated company, society or association), established for a public purpose by or under a law of a state or territory as in force in an external territory, as the principal executive of that agency.

Item 65 - Subparagraph 50(2)(a)(iia)

488. Section 50 of the Privacy Act deals with the reference by the Information Commissioner of complaint investigations to other authorities. This item amends subparagraph 50(2)(a)(iia) to substitute a reference to a 'particular Norfolk Island enactment' with a reference to a 'law in force in an external Territory other than the Ombudsman Act 1976'. This amendment is consequential to the repeal of the definition of 'Norfolk Island enactment' in item 57.

Item 66 - Subparagraph 50(3)(a)(iia)

489. This item amends subparagraph 50(3)(a)(iia) of the Privacy Act to substitute a reference to 'Norfolk Island enactment concerned' with a reference to 'the law mentioned in subparagraph 50(2)(a)(iia)'. This amendment is consequential to the amendment made by item 65 and the repeal of the definition of 'Norfolk Island enactment' in item 57.

Item 67 - Subsection 60(2B)

490. This item repeals subsection 60(2B) of the Privacy Act which contains redundant references to 'Norfolk Island agency' and 'Norfolk Island'. This amendment is consequential to the repeal of the definition of 'Norfolk Island agency' in item 57 and the changes to governance arrangements in Norfolk Island. This amendment clarifies that any compensation and expenses payable under a determination made under section 52 of the Privacy Act are recoverable as a debt due by the Commonwealth to the complainant or individual if a determination applies in relation to an agency that does not have the capacity to sue and be sued.

Item 68 - Subsection 80G(1) (definition of secrecy provision )

491. This item amends the definition of 'secrecy provision' in Part VIA of the Privacy Act which provides for dealing with personal information in emergencies and disasters. The definition in subsection 80G(1) is amended to substitute a reference to 'a law of the Commonwealth (including a provision of this Act), or of a Norfolk Island enactment' with a reference to 'a Commonwealth law (including a provision of this Act)'. This amendment is consequential to the insertion of the new definition of 'Commonwealth law' by item 56 and the repeal of the definition of 'Norfolk Island enactment' in item 57.

Item 69 - Subsection 80P(7) (paragraphs (d) and (e) of the definition of designated secrecy provision )

492. This item amends paragraphs (d) and (e) of the definition of 'designated secrecy provision' in subsection 80P(7) of the Privacy Act. The reference to 'a law of the Commonwealth' is substituted with a reference to 'a Commonwealth law'. This amendment is consequential to the insertion of the new definition of 'Commonwealth law' by item 56.

Item 70 - Subsection 80R(1)

493. This item amends subsection 80R(1) of the Privacy Act to substitute a reference to 'law of the Commonwealth' with a reference to 'a Commonwealth law'. This amendment is consequential to the insertion of the new definition of 'Commonwealth law' by item 56.

Item 71 - Subsection 80R(1A)

494. This item repeals subsection 80R(1A) of the Privacy Act, which contains a reference to 'a Norfolk Island enactment'. This amendment is consequential to the amendment made by item 70, the insertion of the new definition of 'Commonwealth law' by item 56 and the repeal of the definition of 'Norfolk Island enactment' in item 57. Amended subsection 80R(1) of the Privacy Act will provide that the operation of Part VIA of this Act is not be limited by a secrecy provision of a Commonwealth law except to the extent that the secrecy provision expressly excludes the operation of section 80R.

Item 72 - Paragraph 89(c)

495. Section 89 deals with references in Part VIII of the Privacy Act to obligations of confidence. This item amends paragraph 89(c) to substitute a reference to 'a Norfolk Island enactment that is in force' with a reference to 'a law in force in an external Territory'. This extends the application of this Part to an obligation of confidence that arises under or by virtue of a law in force in an external territory and is consequential to the amendments to the definition of 'agency' by items 51 and 52 and the repeal of the definition of 'Norfolk Island enactment' in item 57.

Item 73 - Paragraph 7.8(c) of Schedule 1

496. Schedule 1 to the Privacy Act sets out the APPs. Australian Privacy Principle 7 relates to direct marketing. This item amends paragraph 7.8(c) of to substitute the existing reference to 'a Norfolk Island enactment' with a reference to 'a law in force in an external Territory'. This amendment is consequential to the repeal of the definition of 'Norfolk Island enactment' in item 57. As amended, paragraph 7.8(c) provides that principle 7 does not apply to the extent that any other Act of the Commonwealth, or a law in force in an external territory, is prescribed by the regulations.

Item 74 - Clause 12 of Schedule 1 (subparagraph 12.2(b)(ii))

497. Clause 12 sets out Australian Privacy Principle 12 relating to access to personal information by individuals. This item amends subparagraph 12.2(b)(ii) to replace the existing reference to 'a Norfolk Island enactment' with a reference to 'a law in force in an external Territory'. This amendment is consequential to the amendments to the definition of 'agency' by items 51 and 52 and the repeal of the definition of 'Norfolk Island enactment' in item 57. This has the effect of allowing an APP entity, which is an agency, to refuse to give an individual access to their personal information if the entity is required or authorised to refuse to give the individual access to the personal information under the FOI Act, any other Act, or a law in force in an external territory, to the extent that the entity is required or authorised to refuse to give access.

Item 75 - Amendments of listed provisions

498. This item makes a number of consequential amendments to the Privacy Act to substitute various references to 'enactment' with appropriate references to 'law' or 'Commonwealth law'. These amendments are consequential to the insertion of the new definition of 'Commonwealth law' by item 56 and the repeal of the definitions of 'enactment' and 'Norfolk Island enactment' in item 57.

Division 2 - Application, saving and transitional provisions

Item 76 - Application of amendments

499. Subitem 76(1) provides that the amendments of the Privacy Act made by Division 1 of Part 3 of Schedule 3 to the Bill will only apply after the commencement time in relation to:

•

the collection, holding, use, correction or disclosure of personal information

•

any complaints made under section 36 of the Privacy Act

•

government contracts entered into.

500. Subitem 76(2) provides that in this item 'commencement time' means the time that Part 3 of Schedule 3 to the Bill commences.

501. Item 76 is intended to avoid any doubt that the amendments to the Privacy Act will not have apply retrospectively to any entities affected by these changes.

Part 4 - Other Attorney General's Department Acts

Division 1 - Amendments

Administrative Decisions (Judicial Review) Act 1977

Item 77 - Subsection 3(1) (paragraph (a) of the definition of decision to which this Act applies )

502. This item amends paragraph (a) of the definition of 'decision to which this Act applies' in subsection 3(1) of the ADJR Act to include a reference to new paragraph (e) of the definition of 'enactment'. This amendment is consequential to the amendment made by item 79 to the definition of 'enactment' in subsection 3(1) of the ADJR Act.

Item 78 - Subsection 3(1) (paragraph (b) of the definition of decision to which this Act applies )

503. This item amends paragraph (b) of the definition of 'decision to which this Act applies' in subsection 3(1) of the ADJR Act to include a reference to new paragraph (f) of the definition of 'enactment' in the definition of 'decision to which this Act applies'. This amendment is consequential to the amendment made by item 79 to the definition of 'enactment' in subsection 3(1) of the ADJR Act.

Item 79 - Subsection 3(1) (after paragraph (d) of the definition of enactment )

504. This item inserts new paragraphs (e) and (f) into the definition of 'enactment' with the effect of, including in this definition, laws 'continued' in force in Norfolk Island by section 16 or 16A of the NI Act (including such continued laws as amended under section 17 of the NI Act) and laws of a state or territory applied in the Jervis Bay Territory or an external territory. The effect of this amendment is that decisions of an administrative character made under these laws may, consistent with the operation of the ADJR Act, be subject to judicial review under this Act. The reference to 'laws' in these paragraphs would also include any instruments of a legislative character made pursuant to, or under, these laws, for instance, rules made under a Norfolk Island continued law, including as amended under section 17 of the NI Act.

Item 80 - Subsection 3(1) (definition of enactment )

505. This item amends the definition of 'enactment' in subsection 3(1) of the ADJR Act to include a reference to new paragraphs 3(1)(e) and (f) with the effect of clarifying that, with respect to the laws covered by these new paragraphs, that the definition of 'enactment' includes a part of an enactment. This amendment is consequential to the amendment made by item 79 to the definition of 'enactment' in subsection 3(1) of the ADJR Act.

Item 81 - Section 3B

506. This item repeals section 3B of the ADJR Act, which provides that this Act extends to Norfolk Island. This provision is now redundant in light of the operation of subsection 18(1) of the NI Act which, since amendments to this Act commencing in 2016, has provided that an Act or a provision of an Act extends to Norfolk Island of its own force except so far as the Act or another Act expressly provides otherwise.

Item 82 - Subparagraph 17(d)(i)

507. This item inserts references to new paragraphs 3(1)(e) and (f) of the definition of 'enactment' into subparagraph 17(d)(i) of the ADJR Act. This amendment is consequential to the amendment made by item 3 to the definition of 'enactment' in subsection 3(1) of the ADJR Act. Section 17 of the ADJR Act deals with the circumstances where judicial review is sought of a decision made by an officer, when the original decision maker no longer holds that office, there is no one acting in that office, or that office has since been abolished. In these circumstances, the minister administering the relevant territories Act (for instance the NI Act or the CI Act), or a person he or she authorises for this purpose, would be deemed to have made the relevant decision under either the applied state or territory law or the Norfolk Island continued law.

Criminal Code Act 1995

Item 83 - Dictionary in the Criminal Code (subparagraphs (n)(iv) and (r)(iv) of the definition of Commonwealth public official )

508. This item repeals subparagraphs (n)(iv) and (r)(iv) of the definition of 'Commonwealth public official' in the Criminal Code. This removes references in both these subparagraphs to the NI Act which had the effect of excluding individuals holding or performing the duties of an office, or exercising powers or performing functions, under the NI Act from the definition of 'Commonwealth public official'. The effect of this amendment is to amend the definition of 'Commonwealth public official' to include people exercising powers or functions by or under the NI Act. This change is consistent with the existing arrangements that apply to Christmas Island and the Cocos (Keeling) Islands and the other external territories.

Item 84 - Dictionary in the Criminal Code (paragraph (s) of the definition of Commonwealth public official )

509. This item substitutes a new paragraph (s) in the definition of 'Commonwealth public official' in the Criminal Code to include a reference to the Territory of Norfolk Island. The effect of this amendment is to amend the definition of 'Commonwealth public official' to include an individual who exercises powers, or performs functions, conferred on the person under a law in force in Norfolk Island. This change is consistent with the existing arrangements that apply to Christmas Island and the Cocos (Keeling) Islands.

Division 2 - Application, saving and transitional provisions

Item 85 - Application of amendments of the Administrative Decisions (Judicial Review) Act 1977

510. Subitem 85(1) provides for the amendments of the ADJR Act made by Division 1 of Part 4 of Schedule 3 to the Bill to apply in relation to a decision made after the commencement time and conduct engaged in, or proposed to be engaged in, after the commencement time for the purpose of making a decision.

511. Subitem 85(2) provides that in this item 'commencement time' means the time that Part 4 of Schedule 3 to the Bill commences.

512. Item 85 is intended to avoid any doubt that the amendments to the ADJR Act will not have apply retrospectively to any entities affected by these changes.