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Key amendments to exemption provisions under the Freedom of Information Act 1982

This table summarises the key changes to the provisions relating to exemptionsunder the Freedom of Information Act 1982. It lists the provisions before and after 1 November 2010 and briefly explains the key amendments.

Application of the public interest test to conditional exemptions

One significant amendment is that various public interest tests in the former provisions have been replaced by a single public interest test that applies to conditionally exempt documents. Agencies must give access toconditionally exempt documents unless at the time disclosure would, on balance, be contrary to the public interest (s 11A(5)). The Act sets out some factors that favour access and some that must not be taken into account. The public interest test does not apply to exempt documents.

Provision prior to 1 November 2010	Provision from 1 November 2010	Summary of key amendments
Provision prior to 1 November 2010	Provision from 1 November 2010	Type of exemption	Amendments to content
33 National security, defence or international relations	33 National security, defence or international relations	Exemption	New s 4(10) clarifies that information or matter communicated in confidence by a foreign government or authority or international organisation (for the purposes of s 33(b)) includes information communicated pursuant to a treaty or formal instrument on the reciprocal protection of classified information.
33A Relations with States	47B Commonwealth-State relations	Conditional exemption	Nil
34 Cabinet	34 Cabinet	Exemption	Section 34(1) states that the 'dominant purpose' test applies to documents prepared for submission to Cabinet or briefing a minister in relation to Cabinet documents. Section 34(2) restatesformer s 34(1)(c), exempting a document that is a copy, part of, or an extract from an exempt document under s 34(1). New s 34(3) exempts a document if it contains information which would reveal a Cabinet deliberation or decision, except if the deliberation or decision has been officially disclosed. New s 34(4) makes explicit that a document is not exempt merely because it is an attachment to an exempt document. Section 34(5) restates a qualification in former s 34(1)(d), confirmingthat a document by which a Cabinet decision is officially published (such asa media release) is not an exempt document.
35 Executive Council	REPEALED	Implements rec 50 of the Open government report, on the basis that Executive Council documents could be protected under other exemptions such as the personal privacy or international relations exemptions.
36 Internal working documents	47C Deliberative processes	Conditional exemption	Definition of 'deliberative matter' in s 47C(1) covers the same criteria as former s 36(1)(a). Section 47C(2) makes it explicit that 'operational information' (as defined in s 8A) and purely factual material are not deliberative matter (similar to the effect of former s 36(2)).
37 Enforcement of law and protection of public safety	37 Enforcement of law and protection of public safety	Exemption	Nil
38 Secrecy provisions	38 Secrecy provisions	Exemption	Nil
39 Financial or property interests of the Commonwealth	47D Financial or property interests of the Commonwealth	Conditional exemption	Nil
40 Certain operations of agencies	47E Certain operations of agencies	Conditional exemption	Former s 40(1)(e) was repealed to implement rec 57 of the Open government report, on the basis thatindustrial relations information could be protected under the enforcement of law and protection of public safety exemption.
41 Personal privacy	47F Personal privacy	Conditional exemption	The general criterion in s 47F(1) is unchanged ('unreasonable disclosure of personal privacy'). New s 47F(2) lists matters that an agency or minister must take into account, and provides that any other relevant matter may be considered (similar to s 27A(2) re third party consultation). The procedural requirement to notify a qualified person if access is given to a document containing personal or medical information originating from them (former ss 41(4) and (5)) has been removed. An agency may need to consult the qualified person under s 27A. The list of qualified persons is expanded by replacing 'marriage counsellors' with 'counsellors' (s 47F(7)(d)).
42 Legal professional privilege	42 Legal professional privilege	Exemption	New s 42(3)(a) puts beyond doubt that documents are not exempt if the person entitled to claim legal professional privilege waives the claim. New s 42(3)(b) provides that the exemption does not apply to an agency's operational information (similar to the previous exclusion of documents made available under former s 9(1)).
43(1)(a) Trade secrets	47(1)(a) Trade secrets	Exemption	Nil
43(1)(b) Commercially valuable information	47(1)(b) Commercially valuable information	Exemption	Nil
43(1)(c) Business affairs	47G Business	Conditional exemption	Nil
43A Research	47H Research	Conditional exemption	The former express statement (s 43A(2)) that the exemption did not apply to documents that only contain information relating to completed research has been removed, but this has no practical effect.
44 National economy	47J The economy	Conditional exemption	New s 47J(1)(a) & 1(b) describe circumstances where a substantial adverse effect would, or could reasonably be expected to, result from disclosure. This may include where disclosure of information could: compromise the ability of the Australian Government to obtain access to information undermine confidence in markets, financial frameworks or institutions distort the Australian economy by influencing investment decisions or giving particular individuals or businesses a competitive advantage. New s 47J(2) clarifies that a 'substantial adverse effect on Australia's economy' includes such an effect on a particular sector of the economy or the economy of a particular region of Australia.
45 Material obtained in confidence	45 Material obtained in confidence	Exemption	Consequential amendments to refer to s 47C.
46 Contempt of Parliament or of court	46 Contempt of Parliament or of court	Exemption	Nil
47 Companies and securities legislation	REPEALED	Implements rec 72 of the Open government report, on the basis that documents could be protected under other exemptions such as Commonwealth-State relations.
47A Electoral rolls	47A Electoral rolls	Exemption		Nil