Schedule 2, Part I, Division 1 of the FOI Act

36.18 Some of the agencies listed in sch 2, Part I, div 1 of the FOI Act—including Aboriginal Land Councils and Land Trusts,[23] the Auditor-General and the National Workplace Relations Consultative Council—are exempt from compliance with the IPPs.[24] They are required, however, to comply with other provisions of the Privacy Act, such as the tax file number provisions.[25]

36.19 Section 7A of the Privacy Act provides that agencies listed in sch 2, Part I of the FOI Actshouldbe treated as organisations, if prescribed by regulation. Where an agency has been prescribed by regulation for this purpose, it is required to comply with the National Privacy Principles (NPPs) or an approved privacy code. Currently, the only prescribed agencies are the Australian Government Solicitor and the Australian Industry Development Corporation.[26]

Aboriginal Land Councils and Land Trusts

36.20 Aboriginal Land Councils are independent statutory bodies established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to represent Indigenous people in relation to their native title rights. The functions of a Land Council include: ascertaining and expressing the wishes and opinion of Indigenous people living in the area of the Land Council as to the management of, and appropriate legislation concerning, Indigenous land in that area; protecting the interests of traditional Indigenous landowners and other Indigenous people interested in Indigenous land, and consulting with them on any proposal relating to the use of that land; assisting Indigenous people in taking measures to protect sacred sites, carrying out commercial activities on Indigenous land and pursuing traditional land claims; and negotiating with persons having, or desiring to obtain, estates or interests in land which are the subject of a deed of grant held in escrow by a Land Council.[27]

36.21 Aboriginal Land Trusts were established under the Aboriginal Land Rights (Northern Territory) Act to hold title to land in the Northern Territory for the benefit of Indigenous people entitled by Indigenous tradition to the use or occupation of the land.[28] Land Trusts are responsible for: holding the title to land vested in it in accordance with the Aboriginal Land Rights (Northern Territory) Act; exercising its powers as owner of land for the benefit of the Indigenous people concerned; and where a Land Trust is named as the grantee of land in a deed of grant held in escrow by a Land Council, acquiring the estates and interests of other persons in the land with a view to surrendering those estates and interests to the Crown and delivering the deed of grant held by the Land Council to the Land Trust.[29]

36.22 Aboriginal Land Councils and Land Trusts are exempt from the requirement to comply with the provisions of the FOI Act because they are separate from the executive arm of the government and therefore are not subject to public sector responsibilities.[30] While not stated expressly in any secondary materials, it is likely that this also is the reason that these bodies were exempted from the Privacy Act when that Act applied only to the public sector. It is unclear why they remain exempt from the Privacy Act now that the Act has been extended to the private sector.

Auditor-General

36.23 The Auditor-General is an independent statutory officer responsible for auditing the activities of most Commonwealth public sector entities. The Auditor-General is supported by the Australian National Audit Office, which provides the Australian Parliament with an independent assessment of certain areas of public administration, and assurance about public sector financial reporting, administration and accountability. The Auditor-General has broad information-gathering powers and the authority to access Commonwealth premises.[31] While the Auditor-General is not required to comply with the IPPs, s 36(1) of the Auditor-General Act 1997 (Cth) provides that a person who has obtained information in the course of performing an Auditor-General function must not disclose that information except in the course of performing that function.

National Workplace Relations Consultative Council

36.24 The National Workplace Relations Consultative Council is a consultative body that provides a forum for representatives of the Australian Government, employers and employees to discuss workplace relations matters of national concern.[32] In its review of the Freedom of Information Bill 1978 (Cth), the Senate Standing Committee on Constitutional and Legal Affairs expressed the view that the Council should not be exempt from the FOI legislation because it was a consultative body rather than a conciliatory body, and the Council’s proceedings would be protected from disclosure adequately under another provision of the Bill that exempts internal consultative or deliberative documents from the operation of the Bill.[33]

36.25 During parliamentary debate on the Freedom of Information Bill 1981 (Cth), a number of parliamentarians commented that there was no reasonable justification for exempting many of the agencies in sch 2 of the Bill, many of which did not have commercial or intelligence functions.[34] Particular mention was made of the Aboriginal Land Councils and Land Trusts, the Auditor-General and the former National Labour Consultative Council (now the National Workplace Relations Consultative Council).[35]

36.26 In their 1994 inquiry into the FOI Act, the ALRC and the Administrative Review Council (ARC) commented that decisions to exempt particular agencies from the FOI Acthave tended to be selective.[36] The ALRC and ARC recommended that all agencies listed in sch 2, Part I of the FOI Act(other than the intelligence agencies, the Inspector-General of Intelligence and Security and government business enterprises) should be required to demonstrate to the Attorney-General the grounds on which they should be exempt from the operation of that Act. If they did not do this within 12 months, the ALRC and the ARC recommended that they should be removed from sch 2, Part I of that Act.[37]

36.27 On 5 September 2000, the Freedom of Information Amendment (Open Government) Bill 2000 (Cth) was introduced as a Private Member’s Bill into the Senate by Senator Andrew Murray. The Bill was designed to amend the FOI Actto give effect to recommendations made by the ALRC and the ARC. One proposal under the Bill was to revoke the exempt status of many of the agencies, and of particular documents of certain agencies, listed in sch 2 of the FOI Act.[38]

36.28 The provisions of the Bill were referred to the Senate Legal and Constitutional Legislation Committee for inquiry. In its report, the Committee did not support the proposal to revoke the exempt status of these agencies and documents. It was of the view that alternative ways of structuring the exemption provisions under the FOI Act should be examined more closely before amending the legislation.[39] The Bill was amended to remove the proposal.[40]

[23] Aboriginal Land Councils and Land Trusts are created under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

[24]Privacy Act 1988 (Cth) s 7(1)(a)(i)(B), (2). The intelligence agencies—namely, the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Office of National Assessment—and the Inspector-General of Intelligence and Security also are listed in sch 2, pt I, div 1 of the FOI Act. Issues concerning the exemption of these agencies from compliance with the Privacy Act are discussed in Ch 35.

[25] Ibid s 7(2). See also Explanatory Memorandum, Privacy Bill 1988 (Cth), [46].

[26]Privacy (Private Sector) Regulations 2001 (Cth) reg 4. Note that the AIDC Sale Act 1997 (Cth) provides for the sale of AIDC Ltd, the main operating subsidiary of the Australian Industry Development Corporation, and the progressive winding-down of the Australian Industry Development Corporation. AIDC Ltd was sold in 1998: Commonwealth of Australia, Commonwealth National Competition Policy—Annual Report 1997–98 (1999). Due to some long term obligations, however, the winding down of the Australian Industry Development Corporation is unlikely to be completed before 2010: Australian Industry Development Corporation, Statement of Intent <www.finance.gov.au/gbab/docs/AIDC_SOI.
pdf> at 14 May 2008.

[27]Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23.

[28] Ibid s 4.

[29] Ibid s 5.

[30] Australian Law Reform Commission and Administrative Review Council, Freedom of Information, IP 12 (1994), [12.4].

[31]Auditor-General Act 1997 (Cth) pt 5 div 1.

[32]National Workplace Relations Consultative Council Act 2002 (Cth)s 5.

[33] Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information—Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), [12.36].

[34] Commonwealth, Parliamentary Debates, House of Representatives, 18 August 1981, 44 (L Bowen), 47–48; Commonwealth, Parliamentary Debates, House of Representatives, 18 August 1981, 49 (I Harris), 50–51; Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1981, 428 (B Jones), 430–431; Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1981, 439 (D Cameron), 439–440; Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1981, 440 (P Milton), 441; Commonwealth, Parliamentary Debates, House of Representatives, 18 February 1982, 379 (A Theophanous), 381; Commonwealth, Parliamentary Debates, House of Representatives, 18 February 1982, 388 (J Carlton), 389–390; Commonwealth, Parliamentary Debates, House of Representatives, 18 February 1982, 391 (B Howe), 393.

[35] Commonwealth, Parliamentary Debates, House of Representatives, 18 August 1981, 49 (I Harris), 51; Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1981, 439 (D Cameron), 439–440; Commonwealth, Parliamentary Debates, House of Representatives, 19 August 1981, 440 (P Milton), 441; Commonwealth, Parliamentary Debates, House of Representatives, 18 February 1982, 379 (A Theophanous), 381; Commonwealth, Parliamentary Debates, House of Representatives, 18 February 1982, 391 (B Howe), 393.

[36] Australian Law Reform Commission and Administrative Review Council, Freedom of Information, IP 12 (1994), [12.4].

[37] Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), Rec 74.

[38] See Parliament of Australia—Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000 (2001), [1.1]–[1.2], [3.31].

[39] Ibid, [3.137].

[40] The Bill was lapsed with the prorogue of successive Australian Parliaments, but has been restored to the notice papers a number of times and is currently before the Senate as the Freedom of Information (Open Government) Bill 2003 [2008].