House of Representatives

Explanatory Memorandum

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

Schedule 6 - Other amendments

Part 1 - amendments to the FOI Act

Item 1 - subsection 4(1) (definition of agency)

The term 'eligible case manager' no longer has relevance for the purposes of the FOI Act and this item removes a reference to this term.

Item 2 - subsection 4(1)

This item inserts a definition for 'Commonwealth contract' and is related to item 19. A Commonwealth contract for the purposes of this definition is intended to cover contracts for the delivery of services to the community by another party for or on behalf of an agency. It is not intended to cover contracts for the procurement of services for use by the Commonwealth.

Item 3 - subsection 4(1)

This item inserts a definition for 'contracted service provider' and is related to item 19.

Item 4 - subsection 4(1)

This item is related to the amendment proposed at item 21 (new subsections 7(2C) and 7(2D)).

Item 5 - subsection 4(1) (definition of Department)

This item omits words from the definition of 'Department' which were transitional in nature and are now redundant.

Item 6 - subsection 4(1) (paragraph (d) of the definition of document)

The existing definition of 'document' is defined not to mean library material maintained for reference purposes. Agencies no longer maintain 'libraries' in the traditional sense and this item proposes to update the definition of document to exclude material that is maintained for reference purposes and is otherwise publicly available.

Item 7 - subsection 4(1) (definition of document of an agency)

This item repeals an existing definition and replaces it with a new definition that takes into account the amendment proposed in item 19 (proposed section 6C).

Item 8 - subsection 4(1)

This item is related to the amendment proposed in items 24 and 25. It facilitates the making of applications and giving of notices for purposes under the Act by electronic communication. Applications may still be submitted in person or by post.

Item 9 - subsection 4(1) (definition of eligible case manager)

The term 'eligible case manager' no longer has relevance for the purposes of the FOI Act and this item removes the definition for this term.

Item 10 - subsection 4(1)

This item is related to the amendment proposed in items 20 and 21 (proposed subsection 7(2B)).

Item 11 - subsection 4(1)

This item is related to the amendment proposed at item 32 (proposed section 24AA).

Item 12 - subsection 4(1) (paragraphs (b) and (c) of the definition of principal officer)

The concept of 'principal officer' is used in connection with several aspects of the FOI Act. This item would replace existing paragraph (b) of the definition of 'principal officer' to reduce the need for the Freedom of Information (Miscellaneous Provisions) Regulations to prescribe principal offices in respect of authorities, as authorities can frequently change names or merge. The intention is that proposed subparagraphs (ii) - (v) would apply to most authorities subject to the FOI Act, but if this was not the case (or to avoid ambiguity in some instances) proposed subparagraph (i) allows for the Regulations to declare an office to be the principal office of the authority. In the case of subparagraph (iii), the 'person responsible for the day-to-day management of the authority' would in many cases be the Chief Executive Officer or equivalent position which manages the authority on a day-to-day basis. It is anticipated that the Regulations will be reviewed in conjunction with this amendment.

This item also removes that part of the definition that relates to an 'eligible case manager' (existing paragraph (c)) as this term no longer has relevance for the purposes of the FOI Act.

Item 13 - subsection 4(1)

This item is related to the amendment proposed at item 32 (proposed section 24AB).

Item 14 - subsection 4(1) (paragraph (d) of the definition of responsible Minister)

This item is a minor editorial change that arises as a consequence of item 15.

Item 15 - subsection 4(1) (paragraph (e) of the definition of responsible Minister)

The item is related to the removal of the term 'eligible case manager' from the FOI Act, which no longer has relevance for the purposes of the FOI Act.

Item 16 - subsection 4(1)

This item inserts a definition of 'subcontractor' in respect of a Commonwealth contract (see item 2), which is related to the amendment proposed at item 19 (proposed section 6C - requirement for Commonwealth contracts).

Item 17 - subsection 4(8)

This item repeals a provision dealing with application fees. It is part of these reforms that no application fee will apply in relation to access requests made under Part III of the Act (other than an application fee to the AAT).

Item 18 - section 6B

The item repeals a provision related to an 'eligible case manager', which no longer has relevance for the purposes of the FOI Act.

Item 19 - before section 7

Item 19 inserts proposed section 6C. The measure is intended to extend the scope of the FOI Act so that requests for access may be made for documents held by contracted service providers (and subcontractors) delivering services for or on behalf of an agency to persons in the community. The proposal is tied to recommendation 99 of the Open government report which was concerned with 'the trend towards government contracting with private sector bodies to provide services to the community' on the basis that it 'poses a potential threat to the government accountability and openness'. Under this measure, an agency is required to take contractual measures so that it receives a document held by a contracted services provider (or subcontractor) relating to the performance of the contract when the agency receives an FOI request. The contractual term will be a requirement that the contracted services provider must give a copy of a relevant document to the agency upon request by the agency. A document that is provided under this measure may still be exempt from access if an exemption properly applies.

A related amendment proposal is made at item 33 (new section 24A) to enable an agency or Minister to refuse a request if all reasonable steps have been taken to obtain a relevant document in exercise of the contractual right and the document has not been provided by the contracted services provider (or subcontractor).

Item 20 - subsection 7(2A)

This item repeals existing subsection 7(2A) in the FOI Act and substitutes proposed subsection 7(2A). The proposed subsection replicates existing subsection 7(2A) of the FOI Act (which is redrafted to improve clarity) but extends the operation of the exclusion to a document that contains a summary of, or an extract or information from, an intelligence agency document. For example, a briefing prepared by an agency to a Minister that extracted information from an intelligence agency document would be excluded by this amendment, but only to the extent of that information. Intelligence agencies are wholly excluded from the operation of the FOI Act (under existing subsections 7(1) and (1A)). The proposed exclusion of summaries and extracts of intelligence agency documents held by agencies and ministers ensures an even approach to documents derived from intelligence agencies which are agencies now excluded from the operation of the FOI Act.

This new provision would apply to any document whether or not created before or after commencement of the provision.

Item 21 - subsection 7(2B)

This item repeals existing subsection 7(2B) and substitutes proposed subsection 7(2B). Similar to item 20, under this measure a document that contains a summary of, or extract or information from, an intelligence agency document will be excluded in the hands of a Minister. It is anomalous to treat intelligence agency documents differently when they are held by a Minister rather than an agency.

This new provision would apply to any document whether or not created before or after commencement of the provision.

Proposed subsections 7(2C) and 7(2D) are related to item 38 of this schedule (proposed exclusion for the Department of Defence in respect of particular documents). Proposed subsection 7(2C) is intended to exclude an agency from the operation of the FOI Act when it is holding a document that has originated with, or been received from, the Department of Defence and it is a document of the kind that Department of Defence is excluded under the proposal at item 38 (called a 'defence intelligence document' in new paragraph 7(2C)(a)). Examples of these documents are given at item 38 below. Proposed paragraph 7(2C)(b) excludes an agency in respect of a document that contains a summary of, or extract or information from, a defence intelligence document. Under proposed subsection 7(2D), Ministers would similarly be excluded in relation to a 'defence intelligence document' held by them, or a summary of, or extract from, a defence intelligence document.

Item 22 - after paragraph 13(1)(d)

Under existing subsection 13(1) of the FOI Act, a document is not subject to the Act if a person (including a Minister or former Minister) other than an agency placed it in the collection of the Australian War Memorial, National Library of Australia, National Museum of Australia or the National Archives of Australia. It is a purpose of that provision that the FOI Act does not inhibit voluntary deposits to these institutions. The National Film and Sound Archive receives material similar to that held by the other collecting agencies listed in subsection 13(1) and will be added as an institution for the purposes of subsection 13(1) under this item.

Item 23 - after paragraph 15(2)(a)

This item requires a person making an FOI request to state in their request that it is an application for the purposes of the FOI Act (or similar words). This is necessary as a result of the proposed removal of the requirement for applicants to pay an application fee. As there is no standard form for FOI requests, the payment of an application fee often signifies that a person's request is a request under the FOI Act and not merely an information-related inquiry. This amendment is intended to remove any possible ambiguity for an agency as to whether a request is made under the FOI Act.

Item 24 - paragraphs 15(2)(c) to (e)

This item repeals some procedural requirements for making a request for access to a document under the FOI Act and also substitutes a new requirement for a request to give details of how notices may be sent to the applicant.

Proposed paragraph 15(2)(c) allows notices to be sent by electronic communication if the applicant nominates an electronic address to receive notices under the Act, such as an email address or a fax number. As a result of this amendment, the existing requirement for an address 'in Australia' cannot practicably be preserved.

The requirement for the request to be accompanied by an application fee in existing paragraph 15(2)(e) is removed as a result of the proposed abolition of application fees for FOI requests.

Item 25 - after subsection 15(2)

This item, which inserts proposed subsection 15(2A), establishes that a request for access to a document may be sent by electronic communication, for example by an email or fax number that has been specified by an agency or Minister. The new subsection also retains the existing rules that a request may alternatively sent by delivery in person or by post to an office of an agency or a member of staff of the Minister. Ministerial staff are employed under the Members of Parliament (Staff) Act 1984. The provision recognises that a Minister may not be personally available to perform this function and that it would be facilitative to this function if performed by a member of the Minister's staff.

Item 26 - at the end of subsection 15(3)

This item adds a note at the end of existing subsection 15(3) that is related to the amendment proposed at item 32 (new section 24).

Item 27 - after subsection 15(5)

Under this proposed amendment, agencies and Ministers are required to take into account any guidelines issued by the Information Commissioner for the purposes of Part III of the FOI Act (access to documents). Proposed section 93A, which permits the Information Commissioner to issue guidelines for the purposes of the FOI Act, is inserted by item 57 of Schedule 4. It is not intended that the guidelines have binding effect. It is intended that agencies and Ministers take any guidelines into account in making a decision on a request.

Item 28 - paragraph 15(6)(a)

This item is a minor editorial amendment which removes unnecessary words from the provision. The item also inserts headings into the section to assist with readability.

Item 29 - at the end of section 15

Item 29 inserts proposed subsections 15(7) and 15(8) to allow for an extension of the processing period for an FOI request if consultation with a foreign entity is required. The FOI Act currently allows a time extension to consult with a State, an individual or a business in respect of information concerning them. This new provision permits an agency or Minister to extend the 30 day decision period on an initial application by a further 30 days so that the agency or Minister can consult a foreign government, an authority of a foreign government or an international organisation in order to determine whether a document is exempt under existing subparagraph 33(a)(iii) or paragraph 33(b) of the FOI Act.

Item 30 - after section 15

Item 30 inserts new provisions related to extensions of processing periods.

Proposed section 15AA permits an agency or Minister to extend the initial time period for making a decision by 30 days if the written agreement of the applicant is obtained. The extension period must be no more than 30 days. The agency or Minister must give notice of an extension of this kind to the Information Commissioner. For large or complex requests, an agency may instead elect to seek an extension of time from the Information Commissioner under proposed new section 15AB. Under that provision, the Information Commissioner may extend the decision making period beyond an additional 30 days. The policy approach is that for extensions beyond 30 days, these applications should be under the supervision of the Information Commissioner.

For the purposes of proposed section 15AB, a complex request may include a request that requires extensive consultation. For requests that involve extensive examination of documents with a substantial resource impact, an agency or Minister may instead seek to consult with the applicant to narrow the scope of a request under new section 24 (item 32 of this Schedule).

The effect of proposed section 15AC is that an agency or Minister is deemed to have refused access to a document if the agency or Minister has not given notice of a decision on a request for access (made under section 15) within 30 days of receiving the request (or that period as extended, otherwise than under section 15AC, for example under proposed section 15AA (extension with agreement) or subsection 15(6) (extension upon third party consultation)).

Under proposed subsection 15AC(3), the deemed refusal is taken to be a decision made personally by the principal officer of the agency or the Minister on the last day of the decision period and notice is taken to have been given to the applicant on that same day. A consequence of a deemed refusal decision is that an applicant may directly make an application for Information Commissioner review (as an access refusal decision under proposed paragraph 54L(2)(a)). This provision is similar to the effect of existing subsection 56(1) of the FOI Act.

The effect of proposed subsections 15AC(4)-(6) is that the Information Commissioner is given a discretionary power to extend the period for making an initial decision on an access request, upon application from an agency or Minister. The rationale underlying this provision is that the extension may avoid the need for an applicant to lodge an application for Information Commissioner review. The Information Commissioner may extend the period for such period considered to be appropriate and may also impose conditions. A condition may be that the agency or Minister must give notice of the extended time to the applicant.

If the Information Commissioner allows an extension, the effect of proposed subsection 15AC(7) is that the application for access is not deemed to be refused (providing the agency or Minister makes a decision within the extended time period and complies with any condition). However, if the agency or Minister does not comply, then the effect of proposed subsection 15AC(8) is that a deemed refusal decision is taken to apply. Additionally, under proposed subsection 15AC(9), the Information Commissioner does not have the power to allow a further extension of time to make an initial decision. In this case, it would be open to the applicant to make an application for Information Commissioner review.

Item 31 - paragraph 17(1)(a)

Item 31 is a minor amendment that is consequential to the amendment proposed at Item 32.

Item 32 - section 24

Existing section 24 of the FOI Act permits an access request to be refused if the work involved in processing the request would substantially and unreasonably divert the resources of an agency, or would substantially and unreasonably interfere with the performance of a Minister's functions. This item repeals existing section 24 of the FOI Act and substitutes new sections 24, 24AA and 24AB. The new provisions are intended to have the same scope as existing section 24, with the qualification that new section 24 may be invoked for the purposes of two or more applications seeking access to the same documents or to documents where the subject matter is substantially the same. In the latter case, this provision is intended to address circumstances where applicants make several separate applications over short periods for related documents (for example, request A may be for documents on file for January in a specific matter and requests B and C may be for documents on file for February and March in the same matter).

New section 24 is also amended to enhance the consultation scheme so that onerous requests may be narrowed. That measure implements recommendation 32 of the Open government report.

Proposed section 24AB sets out the procedure for a request consultation process. As part of that process, an agency or Minister must give an applicant written notice comprising certain information including the name of an officer of the agency or member of staff of the Minister who may be consulted about the request. Proposed paragraph 24AB(2)(c) recognises that a Minister is unlikely to be available to consult with an FOI applicant personally about narrowing an onerous request. For that reason, consultation will be undertaken by a member of the Minister's staff, similar to existing subparagraph 24(6)(c)(ii) of the FOI Act. Ministerial staff are employed under the Members of Parliament (Staff) Act 1984.

Item 33 - section 24A

Item 33 repeals existing section 24A of the FOI Act and substitutes proposed section 24A. Proposed section 24A reflects the scope of existing section 24A. However, it is extended to permit an agency to refuse an access request after having made reasonable endeavours to request documents from a contractor or subcontractor pursuant to a contractual right to request the documents for the purposes of responding to an FOI request. This measure is related to the amendment proposed at item 19 to apply the FOI Act to documents held by contracted service providers in connection with a contract to provide services to the community on behalf of an agency. A ground where it may be necessary to refuse a request under proposed new subsection 24A(2) is if the contractor is in liquidation or has been uncooperative.

Item 34 - subsection 29(1)

This item omits words related to application fees. Application fees are proposed to be abolished for all applications under the FOI Act (other than for applications to the AAT).

Item 35 - section 30A

This item repeals existing section 30A of the FOI Act, which deals with the remission of application fees. Application fees are proposed to be abolished for all applications under the FOI Act (other than for applications to the AAT).

Item 36 - section 92A

This item is an amendment consequential to the amendment proposed at items 24 and 25.

Item 37 - Paragraph 94(2)(a)

This item removes words from existing section 94 of the FOI Act (the regulation making power) which limit the ability for regulations to be made that vary charges according to whether the applicant is in a particular class. Upon releasing the exposure draft of this Bill, the Government announced that the first five hours of decision-making time for journalists and not-for-profit community groups would be free of charge. The amendment proposed in this item is necessary to implement that measure.

Item 38 - Division 1 of Part II of Schedule 2 (after the item relating to the Commonwealth Scientific and Industrial Research Organisation)

The Department of Defence is proposed to be excluded for documents in respect of its collection, reporting or analysis of operational intelligence, and special access programs under which a foreign government provides restricted access to technologies. The purpose is to exempt documents in respect of intelligence collection operations conducted by Defence personnel or platforms (such as submarines and aircraft) which are not part of the exempted intelligence agencies. It is also intended to exempt the information collected in those operations and resulting analysis or reports. As with other intelligence documents, due to their extremely high sensitivity the vast majority, if not all, of these documents would be exempt from disclosure.

This item will also exempt documents in respect of special access programs under which a foreign government provides access to highly classified technologies or capabilities, or highly classified Defence applications for technologies or capabilities. Examples of potential Special Access Programs (SAPS) include, but are not limited to the following:

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a specific technology with potential for weaponisation that provides a significant technical lead or tactical advantage over potential adversaries;

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a sensitive technology or unique capability especially vulnerable to foreign intelligence exploitation without special protections; or

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an emerging technology, proposed operation, or intelligence activity risking the compromise of other SAPS.

Access to these programs is provided under an international agreement or arrangement and on the basis that the foreign government requires enhanced security protections because of the threat and/or vulnerability of the information to be protected. Such programs are highly classified (at least at the SECRET level) with tightly controlled access and stringent security measures. The exemption is intended to cover the classified technologies, classified applications, their use and related information. All of these documents would be exempt from disclosure.

A related measure at item 21 of this schedule (new subsections 7(2C) and 7(2D) applies the exclusion to a Minister and an agency holding documents of this kind.

Item 39 - Division 1 of Part II of Schedule 2 (the item relating to the Federal Airports Corporation)

This item repeals the existing exclusion for the Federal Airports Corporation as this body no longer exists.

Part 2 - application provisions

Item 40 - application - items 2, 3, 7, 16, 19 and 33

This item has the effect that the amendments relating to Commonwealth contracts apply only to those contracts entered into at or after the commencement of the relevant items.

Item 41 - items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39

This item has the effect that the relevant amendments do not apply to FOI requests on hand, and apply only to those requests for access under section 15 of the FOI Act or applications under section 48 of the Act that are received at or after the commencement of the relevant items.

Part 3 - Amendment of other Acts

Administrative Appeals Tribunal Act 1975

Items 41A - 41B

As the FOI Act forms an important part of the Commonwealth administrative law system, these items will make the Australian Information Commissioner a member of the Administrative Review Council in the same way as the President of the AAT, the Ombudsman and the President of the Australian Law Reform Commission.

Australian Crime Commission Act 2002

Item 42 - Schedule 1

Under section 20 of the Australian Crime Commission Act, an examiner for the purposes of that Act has power to require the production of information from agencies relevant to an investigation. It is an offence to fail to comply with a notice unless production is prohibited under certain prescribed secrecy provisions. Section 58 of the FOI Act is a prescribed provision for that purpose. However, that section deals with powers of the Administrative Appeals Tribunal in respect of an application for merits review of an FOI decision. Section 58 of the FOI Act does not prohibit publication of information, and its prescription as a provision for the purposes of section 20 of the Australian Crime Commission Act appears to be an error. For that reason, the reference to section 58 of the FOI Act in section 20 of the Australian Crime Commission Act is proposed for repeal.

Environmental Protection and Biodiversity Conservation Act 1999

Items 43 - 48

These proposed amendments are to improve clarity in so far as a number of provisions in the Environmental Protection and Biodiversity Conservation Act 1999 restrict the publication of documents and information (related to certain reports and instruments under the Act) by reference to grounds of exemption under the FOI Act. The references are by description of exemptions grounds and do not refer to provision numbers in the FOI Act. The amendments proposed in the Bill seek to align the descriptive references to actual grounds for exemption under the FOI Act as amended by the Bill as follows:

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reference to the ground of 'the security of the Commonwealth' will be replaced by 'an exempt document under subparagraph 33(a)(i)' of the FOI Act, which is that part of the national security related exemption that refers to the 'security' of the Commonwealth;

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reference to the ground of 'providing advice to the Minister' will be replaced by reference to the deliberative documents exemption (proposed section 47C in Schedule 3); and

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reference to the ground of 'commercial confidence' will be replaced by reference to the trade secrets exemption (proposed section 47 in Schedule 3) and to the business exemption (proposed section 47G in Schedule 3).

Inspector-General of Intelligence and Security Act 1986

Items 49 - 52

These items are consequential amendments to the secrecy provision in the IGIS Act that arise as a result of the proposal to require the IGIS to give evidence in an Information Commissioner review in certain circumstances (see Division 9 of proposed Part VII in item 34 of Schedule 4 to this Bill).