The Law Handbook 2024

1126 NOTE The law in this chapter is current as at 1 September 2023. Introduction Freedom of information ( FoI ) laws create a legal right for individuals and organisations to access information held by government ministers and agencies, both at the state and Commonwealth levels. FoI laws can be employed in various contexts, including: • Migration – immigration records, visa application information or details related to immigration policies and decisions. • Environment and Planning – documents related to zoning, development permits, environmental impact assessments and council decisions. • Social Security (Centrelink) – information related to the status of applications or decisions made by agencies like Centrelink. • Privacy – personal information held by govern­ ment agencies, including medical records, police records or educational transcripts. • Media enquiries – documents and information relevant to investigative reporting. These rights can typically be exercised via administrative processes (sometimes via a website), without the need for costly and time-consuming court proceedings. It is important to note that there are distinct FoI procedures for accessing information held by Commonwealth ministers and agencies, compared to those in Victoria. The FoI process used depends on which entity holds the specific information being sought. Commonwealth FoI legislation Freedom of Information Act The Freedom of Information Act 1982 (Cth) (‘ FoI Act (Cth)’ ) creates a legally enforceable right for any person (including legal persons such as corporations and trusts) to obtain documents held by Australian Government ministers and most Australian Government agencies, including Norfolk Island agencies. Certain agencies are exempt from disclosing a document in response to an FoI request, including various Australian intelligence and defence organisations, the Auditor-General and the Parliamentary Budget Office. The purpose of the FoI Act (Cth) is provided in sections 3 and 3A. Broadly, the FoI Act (Cth) aims to increase: • community access to information held by the Commonwealth Government by providing a right to access information and by imposing an obligation on government agencies to publish information; • public participation in government decision- making; • scrutiny, discussion, comment and review of the government’s activities; and • recognition that information in the government’s possession is a national resource. Generally, access to such documents must be granted within 30 days unless the document falls into one of the exemptions or exclusions contained in the FoI Act (Cth) (ss 11A, 15(5)). See ‘Exemption provisions’ below. Further, the FoI Act (Cth) only provides access to an ‘official document of a minister’ (defined in s 4). This means that personal documents, documents of a party political nature and documents about a minister’s electorate affairs are not subject to release under the FoI Act (Cth). It is not necessary for an applicant to have ‘standing’ of the kind required to succeed with a 12.3 Freedom of information law Contributors: Louis Chiam, Partner; Julia Arrighi, Lawyer; and Heidi Vos, Associate; Allens