House of Representatives

Explanatory Memorandum

Circulated By Authority of the Cabinet Secretary, Senator the Hon Joe Ludwig

Schedule 1 - Objects

Freedom of Information Act 1982

Item 1- section 3

This item repeals the existing objects provision of the FOI Act and substitutes a new objects provision. The new objects explain the underlying rationale of the FOI Act, which is concerned with strengthening Australia's representative democracy through increasing participation in government processes and increasing the accountability of government.

Proposed subsection 3(1) provides that the objects of the FOI Act are to give the Australian community access to government information by requiring agencies to publish information (this is related to the new pro-active publication requirements established under Schedule 2 of the Bill) and by providing for a right of access to documents (this is related to the existing right of access in Part III of the FOI Act).

Proposed subsection 3(2) explains the underlying rationale for the Act and its significance for the proper working of Australia's representative democracy.

Proposed subsection 3(3) responds to recommendation 4 of the Open government report that the object clause should acknowledge that the information collected and created by public officials is a national resource.

Proposed subsection 3(4) reflects existing subsection 3(2) of the FOI Act.

Proposed section 3A confirms an existing policy position that the FOI Act is not intended to codify the law relating to the disclosure of government information. This policy position is currently reflected in section 14 of the FOI Act (which is repealed by item 2). An agency may disclose information without a request under the FOI Act, including information which would be exempt under the Act. An agency may also disclose exempt information pursuant to a request under the Act. However, restrictions such as secrecy provisions may prohibit disclosure of certain information so that there is no discretion to release information of that kind. Restating this policy in the objects provision is intended to place greater emphasis on the discretion to release documents outside the FOI Act. The provision makes clear that a document, including an exempt document, may be disclosed whether or not access has been requested under the FOI Act.

To complement this measure, items 50 (proposed section 90) and 56 of Schedule 4 propose to extend existing protections in the FOI Act for Ministers and officials from certain civil and criminal proceedings so that these protections cover disclosures of documents made in good faith in circumstances where the documents may be exempt or where disclosure is made outside the FOI Act.

Item 2 - section 14

This item is consequential to the amendment proposed at item 1. The effect of section 14 is preserved in proposed new section 3A.