Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon, MP)

Schedule 1 -Amendments

Freedom of Information Act 1982

Items 1 and 2: Subsections 25(1) and (2)

28. These items amend section 25 of the Freedom of Information Act 1982 (FOI Act) so that the right to neither confirm nor deny the existence of certain exempt documents applies to the new exemption in proposed section 45A for Parliamentary Budget Office (PBO) documents.

Item 3: After section 45

29. This item inserts new section 45A which provides a new exemption for PBO documents. This exemption will not be subject to the public interest test in subsection 11A(5) of the FOI Act.

Section 45A: Parliamentary Budget Office documents

30. While the PBO is an exempt agency under the FOI Act, documents related to PBO requests may be held by departments and other agencies. This information may not be protected from release under the FOI Act. Proposed section 45A will protect information held by departments and agencies that relates to a confidential request to the PBO. This will ensure that the integrity of the PBO processes in these matters which are critical to the successful operation of the PBO will not be undermined.

30A. The proposed new exemption is modelled on the existing exemption under section 34 of the FOI Act for Cabinet documents.

31. Proposed subsection 45A will apply the exemption to documents that:

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originate from the PB Officer or PBO and the document was prepared in response to, or otherwise relates to, a confidential request (proposed paragraph 45A(1)(a));

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are brought into existence for the dominant purpose of providing information to the PB Officer or PBO in relation to a confidential request (proposed paragraph 45A(1)(b));

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are provided to the PB Officer or PBO in response to a request for more information in relation to a confidential request (proposed paragraph 45A(1)(c));

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are drafts of documents referred to in proposed paragraphs 45A(1)(a), (b) or (c) (proposed paragraph 45A(1)(d)).

31A. The exemption will only apply to documents prepared by departments and agencies for the 'dominant purpose' of providing information to the PBO relating to a confidential request, it will not apply to documents prepared or held by those departments and agencies in the ordinary course of their business or activities.

32. Confidential requests are defined in proposed subsection 45A(8) to be requests made by a Senator or Member of the House of Representatives under paragraph 64E(1)(a) or (c) of the Parliamentary Service Act 1999 (PS Act) that include a direction to treat the request or any other information relating to the request as confidential. This will ensure that confidential requests to prepare a costing of a policy or a proposed policy under section 64H of the PS Act and confidential requests for information relating to the budget under section 64M of the PS Act are covered by the proposed exemption.

33. Proposed subsection 45A(2) exempts a document to the extent that it is a copy or part of, or contains an extract from, a document that is exempt under proposed subsection 45A(1). This is similar to the provision in proposed paragraph 45A(1)(d) that provides an exemption for draft documents.

34. Proposed subsection 45A(3) exempts a document to the extent it contains information which would reveal that a confidential request has been made except if the confidential request has been disclosed by the Senator or the Member of the House of Representatives who made the request.

35. Proposed subsection 45A(4) makes it clear that a document is not exempt only because it is attached to a document that that would be covered by the exemption. For example, if certain information is prepared for the purpose for public release and providing that information to the PBO is incidental to that main purpose of public release, the information will not be covered by the PBO exemption. Attaching that information to other information covered by the exemption will not make the information exempt under the PBO exemption.

36. Proposed subsection 45A(5) provides that a document is not an exempt document if the information has been made available by the PBO in accordance with the PS Act.

37. Similarly proposed subsection 45A(6) provides that a document is not an exempt document if the information has been made available by the Senator of the Member of the House of Representatives who made the confidential request to which the document relates.

38. Proposed subsection 45A(7) provides that information in PBO documents which is 'purely factual material' is not exempt unless its disclosure would reveal the existence of a confidential request and the existence of the confidential request has not been disclosed by the Senator or Member of the House of Representatives.

Item 4: Subsection 55T(1) note

39. The item amends the note to refer to new section 45A.

Item 5: Section 55U (heading)

40. This item amends the heading to section 55U of the FOI Act to reflect the fact that section 55U is amended by item 6 to apply to documents claimed to be exempt under new section 45A.

Items 6 and 7: Subsections 55U(1) and (3)

41. Items 6 and 7 amend section 55U to apply the provision to the new PBO exemption.

42. Section 55U gives the Australian Information Commissioner (AIC) a discretionary power to require a document claimed to be exempt under certain exemptions to be produced, but only where the AIC is first not satisfied on affidavit or other evidence that the document is exempt. As this is intended to protect against the unnecessary disclosure of sensitive information it is appropriate that this provision applies to the new PBO exemption.

Item 8: Subsection 58B(1)

Item 8 amends subsection 58B(1) to apply the provision to the new PBO exemption.

43. The effect of this amendment is to provide that where an application is made to the Administrative Appeals Tribunal (AAT) for a review of a decision refusing to grant access to a document that is claimed to be exempt under the new PBO exemption, the AAT must be constituted by 3 presidential members or by a presidential member alone. A presidential member of the AAT means the President of the AAT, a member of the AAT who is a judge or a Deputy President.

Items 9 and 10: Subsection 58E(1) and (2)

44. Section 58E replicates section 55U of the FOI Act for matters in the AAT.

45. Section 55U gives the AAT a discretionary power to require a document claimed to be exempt under certain exemptions to be produce, but only where the AAT is first not satisfied on affidavit or other evidence that the document is exempt. As this is intended to protect against the unnecessary disclosure of sensitive information it is appropriate that this provision applies to the new PBO exemption.

46. Items 9 and 10 amend section 58E to apply the provision to the new PBO exemption.

Item 11: Application of the amendments

47. Subclause 1 of item 11 provides that the amendments to the FOI Act made by Schedule 1 apply to requests for access made under section 15 of the FOI Act that are received after the commencement of this item, that is the day the Act receives the Royal Assent.

48. Subclause 2 of item 11 provides that the amendments to the FOI Act made by Schedule 1 will also apply to requests for access (made under section 15 of the FOI Act) that are received in the period between the day after the Bill is introduced and the day the Act receives the Royal Assent.

Privacy Act 1988

Item 12: Subsection 34(1)

49. Item 12 is a consequential amendment arising from the proposed amendments at items 1 and 2 to section 25 of the FOI Act.