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Chapter 5: Amendment of the FOI Act and Regulations

Contents

  1. Introduction
  2. Amendment of the FOI Act
  3. Amendment of the FOI Regulations

Introduction

The Freedom of Information Amendment (Reform) Act 2010, which made significant amendments to the FOI Act, passed the Parliament in May 2010 - before the 2010-11 reporting period. Those amendments took effect from 1 November 2010, with the exception of the Information Publication Scheme (IPS) and disclosure log requirements, which commenced on 1 May 2011.

During the reporting year there were minor amendments to the FOI Act consequential to the amendment of other legislation. These amendments, together with amendments to the FOI Regulations, are outlined below.

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Amendment of the FOI Act

Territories Law Reform Act 2010

The Territories Law Reform Act 2010 made a number of amendments to the FOI Act to extend its operation to the Norfolk Island Government and Administration as part of a wider package to improve Norfolk Island's governance arrangements and strengthen its accountability. The commencement of the substantive amendments was contingent on commencement of the corresponding provisions in the Freedom of Information Amendment (Reform) Act 2010. Therefore, all substantive amendments, except those extending the IPS, came into force on 1 January 2011. The IPS, as it applies to the Norfolk Island Government and Administration, commenced on 1 May 2011. However, a transitional provision provides that the IPS does not apply to any Norfolk Island authority for a period of two years from commencement; that is, from 1 May 2011 (see s 10B of the FOI Act).

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

The Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 amended and consolidated the secrecy and disclosure provisions applying to taxation information that were previously spread over several taxation Acts. Schedule 3 of the FOI Act lists the secrecy provisions that can operate as an exemption under s 38 of the Act. The Tax Laws Amendment Act updated references in Schedule 3 to ensure the correct new provisions are listed. These amendments were a result of the amendments made to taxation secrecy and disclosure laws and had no effect on FOI policy.

Financial Framework Legislation Amendment Act 2010

The Financial Framework Legislation Amendment Act 2010 updated an existing reference in Part III of Schedule 2 of the FOI Act to reflect the renaming of the Australia Wine and Brandy Corporation Act 1980 to the Wine Australia Corporation Act 1980. The amendment had no effect on FOI policy.

Screen Australia (Transfer of Assets) Act 2010

The Screen Australia (Transfer of Assets) Act 2010 changed the name of the National Film and Sound Archive to the National Film and Sound Archive of Australia including a corresponding change in the name of its constituting Act to the National Film and Sound Archive of Australia Act 2008. This change necessitated an update of a reference to that Act and the National Film and Sound Archive in s 13 (1)(e) of the FOI Act. This amendment commenced on 1 July 2011.

Telecommunications Legislation Amendment (National Broadband Network Measures - Access Arrangements) Act 2011

The Telecommunications Legislation Amendment (National Broadband Network Measures - Access Arrangements) Act 2011 is part of a legislative package establishing governance, ownership and operating arrangements for NBN Co and an access regime to facilitate open access to the NBN for retail level telecommunications service providers. The Act amended the FOI Act to make NBN Co a 'prescribed authority' for the purposes of the FOI Act, and inserted an exemption in Schedule 2 for documents relating to its commercial activities (defined as activities carried on by NBN Co on a commercial basis or which may be undertaken on a commercial basis in the foreseeable future - s 7(3A)). This exemption is similar to that applying to other government commercial enterprises that are subject to the FOI Act. The amended provisions commenced on 11 June 2011.

Human Services Legislation Amendment Act 2011

The Human Services Legislation Amendment Act 2011 formalised certain structural changes already made and further integrated the service delivery agencies in the Human Services portfolio. In particular, Medicare Australia was abolished as a separate agency and integrated into the Department of Human Services. These changes necessitated consequential amendments of the FOI Act to update existing references to Medicare Australia, and to insert new definitions of the Department of Human Services and of the Chief Executive Medicare to reflect the new structure of the Human Services portfolio. The amendments did not affect existing FOI policy.

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Amendment of the FOI Regulations

Freedom of Information (Fees and Charges) Amendment Regulations (No 1) 2010

As part of the 2010 FOI reforms, the fees and charges regime was partially amended by the Freedom of Information (Fees and Charges) Amendment Regulations (No 1) 2010 which were made on 27 October 2010 and came into effect on 1 November 2010.

In summary, the amendments mean:

  • no application fee is payable for an FOI request or application for internal review
  • an applicant who seeks access to their own personal information does not pay any charges
  • for all other applications, the first five hours of decision-making time is free of charge
  • no charges are payable where an agency or minister fails to notify a decision within a period prescribed in the Act, unless the period has been extended before the deemed decision date and a decision made within that extended period.

The regulations were also renamed the Freedom of Information (Charges) Regulations 1982.

Freedom of Information (Miscellaneous Provisions) Amendment Regulations (No 1) 2010

The Freedom of Information (Miscellaneous Provisions) Amendment Regulations (No. 1) 2010 (the Regulations) amended the Freedom of Information (Miscellaneous Provisions) Regulations 1982 (the Principal Regulations). The Principal Regulations prescribe the bodies that are prescribed authorities (Schedule 1); the principal offices in respect of prescribed authorities (Schedule 2); and the responsible ministers in respect of prescribed authorities (Schedule 3). They also prescribe the requirements for the furnishing of information for FOI annual reports, as required by s 93(2) of the FOI Act (Regulation 6).

The Regulations amended the Principal Regulations to reflect reforms made by the Freedom of Information Amendment (Reform) Act 2010 (the Reform Act).

As a consequence of amendments to s 93 of the FOI Act, the requirements relating to the provision of information for the FOI annual reports changed from 1 November 2010 so that agencies or ministers must give to the Australian Information Commissioner the information the Commissioner requires to prepare reports under s 30 of the Australian Information Commissioner Act 2010.

The Regulationsalso amended the Principal Regulations to prescribe transitional reporting arrangements for the year 2010-11. These transitional reporting arrangements are summarised in the note at the beginning of this FOI Annual Report.

Under the FOI Act, the ‘principal officer' of an agency may make decisions on access requests or authorise other officers for this purpose. The reforms to the FOI Act expanded the definition of principal officer in s 4(1) of the Act, to reduce the need to prescribe agencies to determine the office holder for this purpose.

The Regulations amended the Principal Regulations to remove two references to prescribed authorities that no longer exist; listed principal offices in respect of prescribed authorities that were not caught by the expanded definition of principal officer; and deleted existing references to responsible ministers, in respect of prescribed authorities, either because the entities no longer existed or there was no reason to continue to prescribe them in this manner.

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