Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Open access period amendments
1 Subsection 3(1)
Insert:
"open access period" , in relation to a record, has the meaning given by the following provisions:
(a) for a Cabinet notebook--section 22A;
(b) for a record containing Census information--section 22B;
(c) f or any other record-- subsection ( 7) of this section.
2 Subsection 3(7)
Repeal the subsection ( including the note), substitute:
(7) For the purposes of this Act, subject to sections 22A and 22B , work out when a record is in the open access period in accordance with the following table:
Open access period for records | ||
Item | If the record came into existence in any of the following years (ending on 31 December): | the record is in the open access period on and after the following day: |
1 | a year (the creation year ) before 1980 | 1 January in the year that is 31 years after the creation year. Example: A record that came into existence in the year 1979 is in the open access period on and after 1 January 2010. |
2 | 1980 or 1981 | 1 January 2011. |
3 | 1982 or 1983 | 1 January 2012. |
4 | 1984 or 1985 | 1 January 2013. |
5 | 1986 or 1987 | 1 January 2014. |
6 | 1988 or 1989 | 1 January 2015. |
7 | 1990 or 1991 | 1 January 2016. |
8 | 1992 or 1993 | 1 January 2017. |
9 | 1994 or 1995 | 1 January 2018. |
10 | 1996 or 1997 | 1 January 2019. |
11 | 1998 or 1999 | 1 January 2020. |
12 | 2000 | 1 January 2021. |
13 | a year (the creation year ) after 2000 | 1 January in the year that is 21 years after the creation year. Example: A record that came into existence in the year 2001 is in the open access period on and after 1 January 2022. |
Note: Cabinet notebooks and records containing Census information have different open access periods (see sections 22A and 22B).
3 Subsection 22A(1)
Repeal the subsection, substitute:
(1) For the purposes of this Act, work out when a Cabinet notebook is in the open access period in accordance with the following table:
Open access period for Cabinet notebooks | ||
Item | If the Cabinet notebook came into existence in any of the following years (ending on 31 December): | the Cabinet notebook is in the open access period on and after the following day: |
1 | a year (the creation year ) before 1960 | 1 January in the year that is 51 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1959 is in the open access period on and after 1 January 2010. |
2 | 1960, 1961 or 1962 | 1 January 2011. |
3 | 1963, 1964 or 1965 | 1 January 2012. |
4 | 1966, 1967 or 1968 | 1 January 2013. |
5 | 1969, 1970 or 1971 | 1 January 2014. |
6 | 1972, 1973 or 1974 | 1 January 2015. |
7 | 1975, 1976 or 1977 | 1 January 2016. |
8 | 1978, 1979 or 1980 | 1 January 2017. |
9 | 1981, 1982 or 1983 | 1 January 2018. |
10 | 1984, 1985 or 1986 | 1 January 2019. |
11 | 1987, 1988 or 1989 | 1 January 2020. |
12 | 1990 | 1 January 2021. |
13 | a year (the creation year ) after 1990 | 1 January in the year that is 31 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1991 is in the open access period on and after 1 January 2022. |
Note: Records that are not Cabinet notebooks have different open access periods (see su bsection 3(7) (general records) and section 22B (records containing Census information) ).
4 Paragraph 26(1)(a)
Omit " 25 years " , substitute " 15 years " .
5 Paragraph 27(3)(b)
Omit " 25 years " , substitute " 15 years " .
6 Subsection 30(2)
Omit " 25 years " , substitute " 15 years " .
Part 2 -- Main exemption amendments
Freedom of Information Act 1982
7 Subsection 4(1)
Insert:
"Cabinet" includes a committee of the Cabinet.
8 Subsection 4(1) (definition of Cabinet notebook )
Omit " or of a committee of the Cabinet, being notes " , substitute " , if the notes were " .
9 Subsection 4(1)
Insert:
"conditionally exempt" : a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
10 Subsection 4(1) (definition of edited copy )
Repeal the definition, substitute:
"edited copy" has the meaning given by section 22 (access to edited copies with exempt or irrelevant matter deleted).
11 Subsection 4(1) ( paragraph ( a) of the definition of exempt document )
Repeal the paragraph, substitute:
(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B ); or
12 Subsection 4(1)
Insert:
"run out" : all of a person ' s opportunities for review or appeal in relation to an access grant decision have run out when:
(a) the latest time for applying for an internal review or an IC review in relation to the decision has ended, if the person has not applied for either review; or
(b) if the person has applied for an internal review in relation to the decision:
(i) the internal review is concluded; and
(ii) the time for applying for an IC review of the decision on internal review has ended, if the person has not applied for the IC review; or
(c) if the person has applied for an IC review in relation to the decision:
(i) proceedings in relation to the IC review are concluded; and
(ii) the time for applying to the Tribunal for a review in relation to the decision has ended, if the person has not applied for such a review; and
(iii) the time for instituting an appeal to the Federal Court in relation to the IC review has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded; or
(d) if the person has applied to the Tribunal for a rev iew in relation to the decision:
(i) proceedings in relation to the review are concluded; and
(ii) the time for instituting an appeal to the Federal Court in relation to the review by the Tribunal has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded.
Note: The time for applying for a review of a decision may be extended in certain circumstances (see sections 54B and 54T ).
13 At the end of section 4
Add:
(10) To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and:
(a) a foreign government or an authority of a foreign government; or
(b) an international organisation.
Note: Section 33 deals with documents affecting national security, defence or international relations.
14 After section 11
Insert:
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has been paid.
(2) This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access--general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note : Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects--information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest ( see section 31B (exempt documents for the purposes of Part IV)).
Note 3 : Section 11B deals with when it is contrary to the public interest to give a person access to the document.
( 6 ) Despite subsection ( 5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph ( b) or (c) of the definition of exempt document in subsection 4(1).
11B Public interest exemptions--factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A (5).
(2) This section does not limit subsection 11A (5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
15 Before section 12
Insert:
11C Publication of information in accessed documents
Scope
(1) This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following:
(a) personal information about any person , if it would be unreasonable to publish the information ;
(b) information about the business, commercial, financial or professional affairs of any person , if it would be unreasonable to publish the information ;
(c ) other information of a kind determined by the Information Commissioner under subsection ( 2) , if it would be unreasonable to publish the information;
(d ) any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs ( a) to (c ).
(2) The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph ( 1)(c ).
Publication
(3 ) The agency, or the Minister, must publish the information to members of the public generally on a website by:
(a) making the information available for downloading from the website; or
(b) publishing on the website a link to another website, from which the information can be downloaded; or
(c) publishing on the website other details of how the information may be obtained.
(4 ) The agency may impose a charge on a person for accessing the information only if:
(a) the person does not directly access the information by downloading it from the website (or another website); and
(b) the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, in curred in giving the person access to that particular information.
(5 ) If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section.
Time limit for publication
(6 ) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.
(7 ) In this section:
"working day" means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the place where the function of publishing the information under this section is to be performed.
16 Section 18
Repeal the section.
17 Section 22
Repeal the section, substitute:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy ) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph ( 1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter--that the matter deleted is exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.
18 Subsections 25(1) and (2)
Omit " or 33A " (wherever occurring).
19 At the end of paragraph 26(1)(a)
Add " and " .
20 After paragraph 26(1)(a)
Insert:
(aa) in the case of a decision to refuse to give access to a conditionally exempt document --include in those reasons the public interest factors taken into account in making the decision; and
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
21 Sections 26A, 27, 27A and 28
Repeal the sections, substitute:
26A Consultation--documents affecting Commonwealth - State relations
Scope
(1) This section applies if:
(a) arrangements have been entered into between the Commonwealth and a State about consultation under this section; and
(b) a request is made to an agency or Minister for access to a document that:
(i) originated with, or was received from, the State or an authority of the State; or
(ii) contains information ( State - originated information ) that originated with, or was received from, the State or an authority of the State; and
(c) it appears to the agency or Minister that the State may reasonably wish to contend that:
(i) the document is conditionally exempt under section 47B (Commonwealth - State relations); and
(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A (5).
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
Consultation required
(2) The agency or Minister must not decide to give the applicant access to the document unless consultation has taken place between the Commonwealth and the State in accordance with the arrangements.
Decision to give access
(3) If, after such consultation has taken place, the agency or Minister decides to give the applicant access to the document, the agency or Minister must give written notice of the decision to both of the following:
(a) the State;
(b) the applicant.
Access not to be given until review or appeal opportunities have run out
(4) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the State for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out , see subsection 4(1).
Edited copies and State - originated information
(5) This section applies:
(a) in relation to an edited copy of a document--in the same way as it applies to the document; and
(b) in relation to a document containing State - originated information--to the extent to which the document contains such information.
27 Consultation--business documents
Scope
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing information ( business information ) covered by subsection ( 2) in respect of a person, organisation or undertaking; and
(b) it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned ) might reasonably wish to make a contention (the exemption contention ) that:
(i) the document is exempt under section 4 7 (trade secrets etc.); or
(ii) the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A (5).
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
(2) This subsection covers the following information:
(a) in relation to a person--information about the person ' s business or professional affairs;
(b) in relation to an organisation or undertaking--information about the business, commercial or financial affairs of the organisation or undertaking.
(3) In determining, for the purposes of paragraph ( 1)(b), whether the person or organisation concerned might reasonably wish to make an exemption contention because of business information in a document, the agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Opportunity to make submissions
(4) The agency or Minister must not decide to give access to the document unless:
(a) the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.
(5) However, subsection ( 4) only applies if it is reasonably practicable for the agency or Minister to give the person or organisation concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)).
Notice of decision to give access
(6) If t he agency or Minister decides to give access to the document, the agency or Minister must give written notice of the de cision to both of the following:
(a) the person or organisation concerned;
(b) the applicant.
Access not to be given until review or appeal opportunities have run out
(7) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person or organisation concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out , see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(8) Subsections ( 6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph ( 4)(a).
Edited copies and business information
(9) This section applies:
(a) in relation to an edited copy of a document--in the same way as it applies to the document; and
(b) in relation to a document containing business information--to the extent to which the document contains such information.
27A Consultation--documents affecting personal privacy
Scope
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing personal information about a person (including a person who has died); and
(b) it appears to the agency or Minister that the person or the person ' s legal personal representative (the person concerned ) might reasonably wish to make a contention (the exemption contention ) that:
(i) the document is conditionally exempt under section 47F ; and
(ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A (5).
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
(2) In determining, for the purposes of paragraph ( 1)(b), whether the person concerned might reasonably wish to make an exemption contention because of personal information in a document, the agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the information;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Opportunity to make submissions
(3) The agency or Minister must not decide to give the applicant access to the document unless:
(a) the person concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.
(4) However, subsection ( 3) only applies if it is reasonably practicable for the agency or Minister to give the person concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)).
Decision to give access
(5) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following:
(a) the person concerned;
(b) the applicant.
Access not to be given until review or appeal opportunities have run out
(6) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out , see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(7) Subsections ( 5) and (6) do not apply unless the person concerned makes a submission in support of the exemption contention as allowed under paragraph ( 3)(a).
Edited copies and personal information
( 8 ) This section applies:
(a) in relation to an edited copy of a document--in the same way as it applies to the document; and
(b) in relation to a document containing personal information--to the extent to which the document contains such information.
22 Before section 32
Insert:
31A Access to exempt and conditionally exempt documents
The following table summarises how this Act applies to exempt documents and documents that are conditionally exempt:
How this Act applies to exempt and conditionally exempt documents | |||
Item | If ... | then ... | because of ... |
1 | a document is an exempt document under Division 2 (exemptions) or under paragraph ( b) or (c) of the definition of exempt document in subsection 4(1) | access to the document is not required to be given
| subsection 11A (4). |
2 | a document is a conditionally exempt document under Division 3 (public interest conditional exemptions) | access to the document is required to be given, unless it would be contrary to the public interest | subsection 11A (5) (see also section 11B (public interest factors)). |
3 | a document is an exempt document as mentioned in item 1, and also a conditionally exempt document under Division 3 | access to the document is not required to be given
| subsections 11A (4) and (6), and section 32 (interpretation). |
4 | access to a document is refused because it contains exempt matter, and the exempt matter can be deleted | (a) an edited copy deleting the exempt matter must be prepared (if practicable); and (b) access to the edited copy must be given; | section 22. |
5 | a document is an exempt document because of any provision of this Act | access to the document may be given apart from under this Act | section 3A (objects--information or documents otherwise accessible). |
31B Exempt documents for the purposes of this Part
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A (5).
Note 1: A document is an exempt document for the purposes of this Act (see subsection 4(1)) if:
(a) it is exempt under this section; or
(b) it is exempt because of section 7 (exemption of certain persons and bodies); or
(c) it is an official document of a Minister that contains matters not relating to the affairs of an agency or a Department of State.
Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
23 Section 32
After " exempt documents " (wherever occurring), insert " , or are conditionally exempt " .
24 After section 32
Insert:
25 At the end of section 33
Add:
Note: See also subsection 4(10).
26 Sections 33A to 36
Repeal the sections, substitute:
General rules
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph ( a) applies; or
(d) it is a draft of a document to which paragraph ( a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection ( 1) applies.
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection ( 1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5) A document by which a decision of the Cabinet is officially published is not an exempt document.
(6) Information in a document to which subsection ( 1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
27 Sections 39, 40 and 41
Repeal the sections.
28 Subsection 42(2)
Repeal the subsection, substitute:
(2) A document is not an exempt document because of subsection ( 1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection ( 1) by reason only that :
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection ( 1) ; and
(b) the information is operational information of an agency.
Note: For operational information , see section 8A .
29 Sections 43, 43A and 44
Repeal the sections.
30 Subsection 45(2)
Omit " any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document " , substitute " a document to which subsection 47C (1) (deliberative processes) applies (or would apply, but for subsection 47C (2) or (3)), that is " .
31 Subsection 45(2)
After " unless the disclosure " , insert " of the document " .
32 Section 47
Repeal the section, substitute:
47 Documents disclosing trade secrets or commercially valuable information
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
(2) Subsection ( 1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority.
33 At the end of Part IV
Add:
Division 3 -- Public interest conditional exemptions
47B Public interest conditional exemptions--Commonwealth - State relations
A document is conditionally exempt if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47C Public interest conditional exemptions--deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A );
(b) purely factual material.
Note: An agency must publish its operational information (see section 8 ).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47D Public interest conditional exemptions--financial or property interests of the Commonwealth
A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47E Public interest conditional exemptions--certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47F Public interest conditional exemptions--personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection ( 5), subsection ( 1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection ( 5) applies if:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant ' s physical or mental health, or well - being.
(5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection ( 7), as the first - mentioned qualified person; and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7) In this section:
"qualified person" means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well - being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47G Public interest conditional exemptions--business
(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2) Subsection ( 1) does not apply to trade secrets or other information to which section 47 applies.
(3) Subsection ( 1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority.
(5) For the purposes of subsection ( 1), information is not taken to concern a person in respect of the person ' s professional affairs merely because it is information concerning the person ' s status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47H Public interest conditional exemptions--research
A document is conditionally exempt if:
(a) it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4; and
(b) disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
47J Public interest conditional exemptions--the economy
(1) A document is conditionally exempt if its disclosure under this Act would, or could be reasonably expected to, have a substantial adverse effect on Australia ' s economy by:
(a) influencing a decision or action of a person or entity; or
(b) giving a person (or class of persons) an undue benefit or detriment, in relation to business carried on by the person (or class), by providing premature knowledge of proposed or possible action or inaction of a person or entity.
Note: A person includes a body corporate and a body politic (see section 22 of the Acts Interpretation Act 1901 ). Examples of a body politic include the government of the Commonwealth, a State, a Territory or a foreign country.
(2) For the purposes of subsection ( 1), a substantial adverse effect on Australia ' s economy includes a substantial adverse effect on:
(a) a particular sector of the economy; or
(b) the economy of a particular region of Australia.
(3) The documents to which subsection ( 1) applies include, but are not limited to, documents containing matter relating to any of the following:
(a) currency or exchange rates;
(b) interest rates;
(c) taxes, including duties of customs or of excise;
(d) the regulation or supervision of banking, insurance and other financial institutions;
(e) proposals for expenditure;
(f) foreign investment in Australia;
(g) borrowings by the Commonwealth, a State or an authority of the Commonwealth or of a State.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A ).
34 Schedule 4
Omit " Section 43A " , substitute " Section 47H " .
Part 3 -- Other exemption amendments
35 Paragraph 33(1)(b)
Repeal the paragraph, substitute:
(b) information or matter:
(i) that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity ); and
(ii) which the foreign entity advises the Commonwealth entity is still confidential; and
(iii) the confidentiality of which it would be reasonable to maintain;
36 Paragraph 50A(2)(b)
Repeal the paragraph, substitute:
(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making the record available for public access:
(i) the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity );
(ii) the foreign entity advises the Commonwealth entity that the information or matter is still confidential.
37 Paragraph 50A(3)(b)
Repeal the paragraph, substitute:
(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making that part, or a copy of that part, of the record available for public access:
(i) the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity );
(ii) the foreign entity advises the Commonwealth entity that the information or matter is still confidential.
38 Subsection 34(1)
Omit " or 33A, " .
Part 4 -- Application provisions
39 Application--Part 2
An amendment made by an item in Part 2 appl ies in relation to requests for access made under section 15 of the Freedom of Information Act 1982 that are received at or after the commencement of that item .
40 Application--items 3 5 , 3 6 and 3 7
The amendments made by items 3 5 , 3 6 and 3 7 apply for the purposes of determining whether access, or an extension of partial access, to a record referred to in section 31 of the Archives Act 1983 will be given in accordance with an application made under section 40 of that Act that is received by the Archives at or after the commencement of those items.