Freedom of Information Act 1982

PART I - PRELIMINARY  

SECTION 4   INTERPRETATION  

4(1)    

In this Act, unless the contrary intention appears:

access grant decision
has the meaning given by section 53B .

access refusal decision
has the meaning given by section 53A .

ACT enactment
means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 ;

action ,
if the action is taken by a person or agency, has the same meaning as in the Ombudsman Act 1976 .

Note:

See subsection 3(2) to (7) of the Ombudsman Act 1976 .

affected third party
has the meaning given by section 53C .

agency
means Department, a prescribed authority or a Norfolk Island authority;

applicant
means a person who has made a request;

Australia
(Repealed by No 154 of 2020)

Australian Geospatial-Intelligence Organisation
means that part of the Department of Defence known as the Australian Geospatial-Intelligence Organisation.

Australian Signals Directorate
(Repealed by No 25 of 2018)

authorised person
has the meaning given by section 77 .

Cabinet
includes a committee of the Cabinet.

Cabinet notebook
means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet, if the notes were made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet;

Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973 .

Commission of inquiry
means:

(a) the Commission of inquiry within the meaning of the Quarantine Act 1908 (as in force immediately before its repeal); or

(b) a Commission of inquiry within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .

Commonwealth contract
means a contract to which all of the following apply:

(a) the Commonwealth or an agency is, or was, a party to the contract;

(b) under the contract, services are, or were, to be provided:

(i) by another party; and

(ii) for or on behalf of an agency; and

(iii) to a person who is not the Commonwealth or an agency;

(c) the services are in connection with the performance of the functions, or the exercise of the powers, of an agency.

complainant
has the meaning given by subsection 70(1) .

conditionally exempt
: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document.

Note:

Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).

contracted service provider ,
for a Commonwealth contract, means an entity that is, or was:

(a) a party to the Commonwealth contract; and

(b) responsible for the provision of services under the Commonwealth contract.

Defence Imagery and Geospatial Organisation
(Repealed by No 108 of 2014)

defence intelligence document
has the meaning given by paragraph 7(2C)(a) .

Defence Intelligence Organisation
means that part of the Department of Defence known as the Defence Intelligence Organisation.

Defence Signals Directorate
(Repealed by No 108 of 2014)

Department
means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth.

document
includes:

(a) any of, or any part of any of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v) any article on which information has been stored or recorded, either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or duplicate;

but does not include:

(d) material maintained for reference purposes that is otherwise publicly available; or

(e) Cabinet notebooks;

document of an agency :
a document is a document of an agency if:

(a) the document is in the possession of the agency, whether created in the agency or received in the agency; or

(b) in order to comply with section 6C , the agency has taken contractual measures to ensure that it receives the document.

edited copy
has the meaning given by section 22 (access to edited copies with exempt or irrelevant matter deleted).

electronic communication
has the same meaning as in the Electronic Transactions Act 1999 .

eligible case manager
(Repealed by No 51 of 2010)

enactment
means, subject to section 4A:

(a) an Act;

(b) an Ordinance of the Australian Capital Territory; or

(c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and includes an enactment as amended by another enactment;

engage in conduct
means:

(a) do an act; or

(b) omit to do an act.

exempt content-service document
means:

(a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ), that:

(i) has been delivered by, or accessed using, a content service (within the meaning of that Schedule); and

(ii) was offensive content-service content when it was delivered by, or accessed using, that content service; or

(b) a document that sets out how to access, or that is likely to facilitate access to, offensive content-service content (for example, by setting out the name of a website, an IP address, a URL or a password).

exempt document
means:

(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B ); or

(b) a document in respect of which, by virtue of section 7 , an agency, person or body is exempt from the operation of this Act; or

(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.

exempt internet-content document
means:

(a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 , as in force before the commencement of the Online Safety Act 2021 ) that:

(i) has been copied from the internet; and

(ii) was offensive internet content when it was accessible on the internet; or

(b) a document that sets out how to access, or that is likely to facilitate access to, offensive internet content (for example: by setting out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).

exempt matter
means matter the inclusion of which in a document causes the document to be an exempt document;

exempt online content scheme document
means:

(a) a document containing material (within the meaning of the Online Safety Act 2021 ), or a record of material (within the meaning of that Act), that is online content scheme material; or

(b) a document that sets out how to access, or that is likely to facilitate access to, material (within the meaning of the Online Safety Act 2021 ) that is online content scheme material (for example, by setting out the name of a website, an IP address, a URL or a password).

Human Services Department
means Services Australia.

Human Services Minister
(Repealed by No 104 of 2020)

IC review
has the meaning given by section 54G .

IC reviewable decision
has the meaning given by section 54K .

IC review applicant
has the meaning given by section 54J .

IC review application
has the meaning given by section 54H .

implementation notice
has the meaning given by section 89 .

Independent Review
means the Independent Review into the workplaces of Parliamentarians and their staff conducted under the Australian Human Rights Commission Act 1986 by the Sex Discrimination Commissioner (within the meaning of that Act).

Note:

The Independent Review commenced in 2021.

Information Commissioner
has the meaning given by the Australian Information Commissioner Act 2010 .

intelligence agency document
has the meaning given by paragraph 7(2A)(a) .

internal review
has the meaning given by sections 54 and 54A .

internal review applicant
has the meaning given by section 54B .

investigation recommendations
has the meaning given by section 88 .

investigation results
has the meaning given by section 87 .

Minister
(Repealed by No 59 of 2015)

NBN Co
means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).

Norfolk Island authority
means any of the following bodies or persons, other than a body or person prescribed by the regulations for the purposes of subsection 7(2AB) :

(a) a body (whether incorporated or not) established for a public purpose by or under a Norfolk Island law, other than a law providing for the incorporation of associations or companies;

(b) a person holding or performing the duties of:

(i) an office established by or under a Norfolk Island law; or

(ii) an appointment made under a Norfolk Island law.

Norfolk Island enactment
(Repealed by No 154 of 2020)

Norfolk Island law
means a law in force in the Territory of Norfolk Island other than:

(a) an Act; or

(b) an instrument made under an Act.

Norfolk Island Minister
(Repealed by No 59 of 2015)

offensive content-service content
means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ) that is:

(a) delivered by, or accessed using, a content service (within the meaning of that Schedule); and

(b) either:

(i) prohibited content (within the meaning of that Schedule, as in force before the commencement of the Online Safety Act 2021 ); or

(ii) potential prohibited content (within the meaning of that Schedule, as in force before the commencement of the Online Safety Act 2021 ).

offensive internet content
means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 , as in force before the commencement of the Online Safety Act 2021 ) that is:

(a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or

(b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act).

officer
, in relation to an agency, includes a member of the agency or a member of the staff of the agency;

official document of a Minister or official document of the Minister
means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency;

Ombudsman
means the Commonwealth Ombudsman;

online content scheme material
means material that:

(a) has been provided on a social media service, relevant electronic service or designated internet service (within the meaning of the Online Safety Act 2021 ); and

(b) was:

(i) class 1 material (within the meaning of the Online Safety Act 2021 ); or

(ii) class 2 material (within the meaning of the Online Safety Act 2021 ) that is covered by paragraph 107(1)(a), (b), (c), (d) or (e) of that Act;

when it was provided on the service.

operational information
has the meaning given by section 8A .

Ordinance
, in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment);

Parliamentary Budget Office
has the same meaning as in the Parliamentary Service Act 1999 .

Parliamentary Budget Officer
has the same meaning as in the Parliamentary Service Act 1999 .

personal information
has the same meaning as in the Privacy Act 1988 .

practical refusal reason
has the meaning given by section 24AA .

prescribed authority
means:

(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than:

(i) an incorporated company or association; or

(ii) a body that, under sub-section (2), is not to be taken to be a prescribed authority for the purposes of this Act; or

(iii) the Australian Capital Territory House of Assembly; or

(iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or

(v) (Repealed by No 59 of 2015)

(vi) a Royal Commission; or

(vii) a Commission of inquiry; or

(aa) NBN co; or

(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:

(i) a body established by the Governor-General or by a Minister; or

(ii) an incorporated company or association over which the Commonwealth is in a position to exercise control; or

(ba) in relation to the prescribed authority referred to in paragraph (aa) of that definition - the Minister administering the National Broadband Network Companies Act 2011 ; or

(c) subject to sub-section (3), the person holding, or performing the duties of, an office established by an enactment or an Order-in-Council; or

(d) the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Council.

principal officer
means:

(a) in relation to a Department - the person holding, or performing the duties of, the office of Secretary of the Department; and

(b) in relation to a prescribed authority:

(i) if the regulations declare an office to be the principal office of the authority - the person holding, or performing the duties of, that office;

(ii) if the authority is an Agency (within the meaning of the Public Service Act 1999 ) other than a Department and subparagraph (i) does not apply - the Agency Head (within the meaning of the Public Service Act 1999 ) of the authority;

(iii) if neither subparagraph (i) nor (ii) applies - the person responsible for the day-to-day management of the authority;

(iv) if the authority is constituted by one person and none of subparagraphs (i) to (iii) applies - that person;

(v) if the authority is constituted by 2 or more persons and none of subparagraphs (i) to (iv) applies - the person who is entitled to preside at any meeting of the authority at which he or she is present; or

(c) in relation to a Norfolk Island authority - the person responsible for the day-to-day management of the authority.

(c) in relation to a Norfolk Island authority - the person holding, or performing the duties of, the office of Chief Executive Officer under the Public Service Act 2014 of Norfolk Island.

request
means an application made under sub-section 15(1);

request consultation process
has the meaning given by section 24AB .

respondent agency
has the meaning given by subsections 69(2) and 70(2) .

responsible Minister
means:

(a) in relation to a Department - the Minister administering the relevant Department of State; or

(b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority - the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or

(c) in relation to a prescribed authority referred to in paragraph (c) of that definition - the Minister administering the part of the enactment by which the office is established; or

(d) in relation to any other prescribed authority - the Minister declared by the regulations to be the responsible Minister in respect of that authority; or

(e) in relation to a Norfolk Island authority - the Minister administering the Norfolk Island Act 1979 ;

or another Minister acting for and on behalf of that Minister;

review parties
has the meaning given by section 55A .

run out :
all of a person ' s opportunities for review or appeal in relation to an access grant decision have run out when:

(a) the latest time for applying for an internal review or an IC review in relation to the decision has ended, if the person has not applied for either review; or

(b) if the person has applied for an internal review in relation to the decision:

(i) the internal review is concluded; and

(ii) the time for applying for an IC review of the decision on internal review has ended, if the person has not applied for the IC review; or

(c) if the person has applied for an IC review in relation to the decision:

(i) proceedings in relation to the IC review are concluded; and

(ii) the time for applying to the Tribunal for a review in relation to the decision has ended, if the person has not applied for such a review; and

(iii) the time for instituting an appeal to the Federal Court in relation to the IC review has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded; or

(d) if the person has applied to the Tribunal for a review in relation to the decision:

(i) proceedings in relation to the review are concluded; and

(ii) the time for instituting an appeal to the Federal Court in relation to the review by the Tribunal has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded.

Note:

The time for applying for a review of a decision may be extended in certain circumstances (see sections 54B and 54T ).

State
includes the Australian Capital Territory and the Northern Territory;

subcontractor ,
for a Commonwealth contract, means an entity:

(a) that is, or was, a party to a contract (the subcontract ):

(i) with a contracted service provider for the Commonwealth contract; or

(ii) with another subcontractor for the Commonwealth contract (under a previous application of this definition); and

(b) that is, or was, responsible under the subcontract for the provision of services for the purposes (whether direct or indirect) of the Commonwealth contract.

Tribunal
means the Administrative Review Tribunal.

vexatious applicant declaration
has the meaning given by section 89K .

4(2)    
An unincorporated body, being a board, council, committee, sub-committee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purposes of this Act, but shall be deemed to be comprised within that prescribed authority.

4(3)    
A person shall not be taken to be a prescribed authority:

(a)    

by virtue of his holding:

(i) an office of member of the Legislative Assembly for the Australian Capital Territory;

(ii) an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or

(iii) (Repealed by No 59 of 2015)

(b)    by virtue of his holding, or performing the duties of:

(i) a prescribed office;

(ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority;

(iii) an office of member of a body; or

(iv) an office established by an enactment for the purposes of a prescribed authority.

4(3A)    

If an unincorporated body consists of a board, council, committee, sub-committee or other body established by or under a Norfolk Island law for the purpose of assisting, or performing functions connected with, a Norfolk Island authority:

(a)    the unincorporated body is taken not to be a Norfolk Island authority for the purposes of this Act; and

(b)    the unincorporated body is taken to be comprised within that Norfolk Island authority.

4(3B)    

A person is not taken to be a Norfolk Island authority because he or she holds, or performs the duties of:

(a)    

a prescribed office; or

(b)    an office the duties of which he or she performs as duties of his or her employment as an officer of a Norfolk Island authority; or

(c)    an office of member of a Norfolk Island authority; or

(d)    

an office established by a Norfolk Island law for the purposes of a Norfolk Island authority.

4(4)    
For the purposes of this Act, the Department of Defence shall be deemed to include:

(a)    the Defence Force; and

(b)    

the Australian Defence Force Cadets.

(c) (Repealed by No 164 of 2015)

(d) (Repealed by No 164 of 2015)

4(5)    
Without limiting the generality of the expression security of the Commonwealth , that expression shall be taken to extend to:

(a)    matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and

(b)    the security of any communications system or cryptographic system of the Commonwealth or of another country used for:

(i) the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or

(ii) the conduct of the international relations of the Commonwealth.

4(6)    
Where an agency is abolished, then, for the purposes of this Act:

(a)    

if the functions of the agency are acquired by another agency any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency; and

(b)    if the functions of the agency are acquired by more than one other agency any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, whichever of those other agencies has acquired the functions of the first-mentioned agency to which the document the subject of the request most closely relates; and

(c)    

if the documents of the agency are transferred to the care (within the meaning of the Archives Act 1983 ) of the National Archives of Australia any request made to the agency shall be deemed to have been made to, and any decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates.

4(7)    
If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time.

4(8)    
(Repealed by No 51 of 2010)

4(9)    

For the purposes of the application of the definition of responsible Minister in subsection (1) , the reference in that definition to the Minister administering a Department is a reference to the Minister to whom the Department is responsible in respect of the matter in respect of which this Act is being applied.

4(10)    

To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and:

(a)    a foreign government or an authority of a foreign government; or

(b)    an international organisation.

Note:

Section 33 deals with documents affecting national security, defence or international relations.

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