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1. Independent contractor or employee?

Part I—Preliminary

1.      Short title [see Note 1]

This Act may be cited as the Freedom of Information Act 1982.

2.      Commencement [see Note 1]

The several Parts of this Act shall come into operation on such respective dates as are fixed by Proclamation.

3.      Object

(1)    The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a)    making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)    creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c)     creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2)    It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

4.      Interpretation

(1)    In this Act, unless the contrary intention appears:

ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self‑Government) Act 1988.

agency means a Department, a prescribed authority or an eligible case manager.

applicant means a person who has made a request.

Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet.

Defence Imagery and Geospatial Organisation means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation.

Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation.

Defence Signals Directorate means that part of the Department of Defence known as the Defence Signals Directorate.

Department means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth but does not include the branch of the Australian Public Service comprising the transitional staff as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988.

document includes:

(a)    any of, or any part of any of, the following things:

(i)      any paper or other material on which there is writing;

(ii)     a map, plan, drawing or photograph;

(iii)    any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv)    any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v)     any article on which information has been stored or recorded, either mechanically or electronically;

(vi)    any other record of information; or

(b)    any copy, reproduction or duplicate of such a thing; or

(c)     any part of such a copy, reproduction or duplicate;

but does not include:

(d)    library material maintained for reference purposes; or

(e)    Cabinet notebooks.

document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.

edited copy, in relation to a document, means a copy of the document from which deletions have been made under section 22.

eligible case manager means an entity (within the meaning of the Employment Services Act 1994):

(a)    that is, or has at any time been, a contracted case manager within the meaning of that Act; and

(b)    that is not:

(i)      a Department; or

(ii)     a prescribed authority.

enactment means, subject to section 4A:

(a)    an Act;

(b)    an Ordinance of the Australian Capital Territory; or

(c)     an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance and includes an enactment as amended by another enactment.

exempt document means:

(a)    a document which, by virtue of a provision of Part IV, is an exempt document;

(b)    a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or

(c)     an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.

exempt Internet‑content document means:

(a)    a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that:

(i)      has been copied from the Internet; and

(ii)     was offensive Internet content when it was accessible on the Internet; or

(b)    a document that sets out how to access, or that is likely to facilitate access to, offensive Internet content (for example: by setting out the name of an Internet site, an IP address, a URL, a password, or the name of a newsgroup).

exempt matter means matter the inclusion of which in a document causes the document to be an exempt document.

offensive Internet content means Internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that is:

(a)    prohibited content (within the meaning of that Schedule); or

(b)    potential prohibited content (within the meaning of that Schedule).

officer, in relation to an agency, includes a member of the agency or a member of the staff of the agency.

official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency.

Ombudsman means the Commonwealth Ombudsman.

Ordinance, in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment).

personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

prescribed authority means:

(a)    a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order‑in‑Council, other than:

(i)      an incorporated company or association;

(ii)     a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act;

(iii)    the Australian Capital Territory House of Assembly;

(iv)    the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory;

(v)     the Legislative Assembly of the Territory of Norfolk Island; or

(vi)    a Royal Commission;

(b)    any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:

(i)      a body established by the Governor‑General or by a Minister; or

(ii)     an incorporated company or association over which the Commonwealth is in a position to exercise control;

(c)     subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order‑in‑Council; or

(d)    the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor‑General, or by a Minister, otherwise than under an enactment or an Order‑in‑Council.

principal officer means:

(a)    in relation to a Department—the person holding, or performing the duties of, the office of Secretary of the Department; or

(b)    in relation to a prescribed authority:

(i)      if the regulations declare an office to be the principal office in respect of the authority—the person holding, or performing the duties of, that office; or

(ii)     in any other case—the person who constitutes that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or

(c)     in relation to an eligible case manager:

(i)      if the eligible case manager is an individual—the individual; or

(ii)     in any other case—the individual who has primary responsibility for the management of the eligible case manager.

request means an application made under subsection 15(1).

responsible Minister means:

(a)    in relation to a Department—the Minister administering the relevant Department of State; or

(b)    in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority—the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or

(c)     in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or

(d)    in relation to any other prescribed authority—the Minister declared by the regulations to be the responsible Minister in respect of that authority; or

(e)    in relation to an eligible case manager—the Minister administering the Employment Services Act 1994;

or another Minister acting for and on behalf of that Minister.

State includes the Australian Capital Territory and the Northern Territory.

Tribunal means the Administrative Appeals Tribunal.

(2)    An unincorporated body, being a board, council, committee, sub‑committee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purposes of this Act, but shall be deemed to be comprised within that prescribed authority.

(3)    A person shall not be taken to be a prescribed authority:

(a)    by virtue of his or her holding:

(i)      an office of member of the Legislative Assembly for the Australian Capital Territory;

(ii)     an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or

(iii)    an office of member of the Legislative Assembly of the Territory of Norfolk Island or of Administrator or Deputy Administrator of that Territory or an executive office created pursuant to section 12 of the Norfolk Island Act 1979; or

(b)    by virtue of his or her holding, or performing the duties of:

(i)      a prescribed office;

(ii)     an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority;

(iii)    an office of member of a body; or

(iv)    an office established by an enactment for the purposes of a prescribed authority.

(4)    For the purposes of this Act, the Department of Defence shall be deemed to include:

(a)    the Defence Force;

(b)    the Australian Army Cadets;

(c)     the Australian Navy Cadets; and

(d)    the Australian Air Force Cadets.

(5)    Without limiting the generality of the expression security of the Commonwealth, that expression shall be taken to extend to:

(a)    matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and

(b)    the security of any communications system or cryptographic system of the Commonwealth or of another country used for:

(i)      the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or

(ii)     the conduct of the international relations of the Commonwealth.

(6)    Where an agency is abolished, then, for the purposes of this Act:

(a)    if the functions of the agency are acquired by another agency—any request made to the first‑mentioned agency shall be deemed to have been made to, and any decision made by the first‑mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency;

(b)    if the functions of the agency are acquired by more than one other agency—any request made to the first‑mentioned agency shall be deemed to have been made to, and any decision made by the first‑mentioned agency in respect of a request made to it shall be deemed to have been made by, whichever of those other agencies has acquired the functions of the first‑mentioned agency to which the document the subject of the request most closely relates; and

(c)     if the documents of the agency are deposited with the Australian Archives—any request made to the agency shall be deemed to have been made to, and any decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates.

(7)    If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time.

(8)    For the purposes of this Act, where regulations for the purposes of this subsection declare that an application fee is applicable in respect of an application under subsection 15(1) or 54(1), there shall be taken to be an application fee in respect of the application.

(9)    For the purposes of the application of the definition of responsible Minister in subsection (1) of this Act (other than sections 8 and 93), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom the Department is responsible in respect of the matter in respect of which this Act is being applied.

4A.   Certain legislation relating to Australian Capital Territory not to be enactment

(1)    ACT enactments are not enactments.

(2)    The Australian Capital Territory (Self‑Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments.

(3)    Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments.

(4)    Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment.

(5)    Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be.

5.      Act to apply to courts in respect of administrative matters

For the purposes of this Act:

(a)    a court shall be deemed to be a prescribed authority;

(b)    the holder of a judicial office or other office pertaining to a court in his or her capacity as the holder of that office, being an office established by the legislation establishing the court, shall be deemed not to be a prescribed authority and shall not be included in a Department; and

(c)     a registry or other office of a court, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court;

but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.

6.      Act to apply to certain tribunals in respect of administrative matters

For the purposes of this Act:

(a)    each tribunal, authority or body specified in Schedule 1 is deemed to be a prescribed authority;

(b)    the holder of an office pertaining to a tribunal, authority or body specified in Schedule 1, being an office established by the legislation establishing the tribunal, authority or body so specified in his or her capacity as the holder of that office, is not to be taken to be a prescribed authority or to be included in a Department; and

(c)     a registry or other office of or under the charge of a tribunal, authority or body specified in Schedule 1, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the tribunal, authority or body so specified as a prescribed authority;

but this Act does not apply to any request for access to a document of a tribunal, authority or body so specified unless the document relates to matters of an administrative nature.

6A.   Official Secretary to the Governor‑General

(1)    This Act does not apply to any request for access to a document of the Official Secretary to the Governor‑General unless the document relates to matters of an administrative nature.

(2)    For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor‑General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor‑General.

6B.   Eligible case managers

This Act only applies to a request for access to a document of an eligible case manager if the document is in respect of:

(a)    the provision of case management services (within the meaning of the Employment Services Act 1994) to a person referred to the eligible case manager under Part 4.3 of that Act; or

(b)    the performance of a function conferred on the eligible case manager under that Act.

7.      Exemption of certain persons and bodies

(1)    The bodies specified in Division 1 of Part I of Schedule 2, and a person holding and performing the duties of an office specified in that Division, are to be deemed not to be prescribed authorities for the purposes of this Act.

(1A)  For the purposes of the definition of agency, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2:

(a)    is taken not to be included in the Department of Defence (or in any other Department) for the purposes of this Act; and

(b)    to avoid doubt, is not an agency in its own right for the purposes of this Act.

(2)    The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.

(2AA)  A body corporate established by or under an Act specified in Part III of Schedule 2 is exempt from the operation of this Act in relation to documents in respect of the commercial activities of the body corporate.

(2A)  An agency is exempt from the operation of this Act in relation to a document that has originated with, or has been received from, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Inspector‑General of Intelligence and Security or the Office of National Assessments, or the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence.

(3)    In subsection (2AA) and Part II of Schedule 2, commercial activities means:

(a)    activities carried on by an agency on a commercial basis in competition with persons other than governments or authorities of governments; or

(b)    activities, carried on by an agency, that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with persons other than governments or authorities of governments.

(4)    In subsection (2AA) and Part II of Schedule 2, a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities.