The right to obtain access to documents under the Freedom of Information Act 1982 (FOI Act) extends to documents of an ‘agency' and official documents of a minister, other than exempt documents. An ‘agency' is defined in s 4(1) of the FOI Act as:
- a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth
- a ‘prescribed authority’
- a ‘Norfolk Island authority’.
This chart helps in identifying those bodies and offices that are covered by the FOI Act, and those that are excluded. It is not intended to be a comprehensive summary of the coverage of the FOI Act. A small number of agencies are exempt from the FOI Act (see Schedule 2 Part I). Other agencies are subject to the FOI Act but are exempt in relation to particular types of documents (see Schedule 2 Part II).
To determine whether a particular body or office falls within the definition of ‘agency’, you should refer to ss 4-7 and Schedules 1 and 2 of the FOI Act as well as the FOI Guidelines.
FOI Act agencies
Departments of State
All Departments of State (such as the Department of Defence) are subject to the FOI Act.
Bodies established for a public purpose
Bodies established for a public purpose by or under an enactment or an Order in Council (or, in the case of Norfolk Island, by the Administrator or a minister) are subject to the FOI Act.
An unincorporated body (such as a board or committee) established under an enactment to assist or perform functions connected with a prescribed authority or Norfolk Island authority is deemed to be comprised within that prescribed authority or Norfolk Island authority (s 4(2), (3A)).
The general exceptions are set out in s 4(1)–(3) and include:
- incorporated companies or associations (except NBN Co and prescribed bodies)
- Royal Commissions
- Commissions of Inquiry within the meaning of the Quarantine Act 1908 or the Offshore Petroleum and Greenhouse Gas Storage Act 2006
- the legislature of the Northern Territory, Australian Capital Territory and Norfolk Island.
The bodies listed in Schedule 2, Part I are also excluded (s 7).
Holders of an office established for a public purpose
Holders of an office established under an enactment or an Order in Council (or, in the case of Norfolk Island, by the Administrator or a minister) are subject to the FOI Act.
The following exceptions are set out in s 4(3) and (3B):
- members of the NT, ACT or Norfolk Island legislature
- ministers of the NT or ACT, or the Administrator and Deputy Administrator of Norfolk Island
- an office whose holder performs duties as part of their employment by a Department, a prescribed authority or a Norfolk Island authority
- an office excluded by regulations
- an office of member of a body or Norfolk Island authority
- an office established by an enactment for the purposes of a prescribed authority or a Norfolk Island authority.
Courts are deemed to be prescribed authorities (or, in the case of Norfolk Island, Norfolk Island authorities), and are subject to the FOI Act only in relation to documents that relate to matters of an administrative nature (s 5).
These authorities are listed in clause 6 of the Freedom of Information (Prescribed Authorities, Principal Offices and Annual Report) Regulations 2017[RH1] . At 13 June 2019 the only prescribed authority was Aboriginal Hostels Limited.
For the purposes of the definition of principal officer in s 4(1)(b)(i) of the FOI Act, the following table identifies the principal office of the prescribed authority mention in column 1 of the item.
Column 1 Prescribed authority
Column 2 Office
Australian Competition Tribunal
Registrar of the Tribunal
Secretary of the Department administered by the Minister administering the Designs Act 2003
Secretary of the Department administered by the Minister administering the Patents Act 1990
Safe Work Australia
Chief Executive Officer of Safe Work Australia
Tax Practitioners Board
Chair of the Board
Managing Director of Tourism Australia
Trade Marks Office
Secretary of the Department administered by the Minister administering the Trade Marks Act 1995
National Broadband Network (NBN Co)
NBN Co is listed in paragraph (aa) of the definition of ‘prescribed authority’ in s 4(1) of the FOI Act.