109 Regulation-making power
(1) The Executive may make regulations for this Act.
(2) The Executive must consult the ombudsman before making a
regulation for this Act.
Section 1.1
Schedule 1 Information disclosure of
which is taken to be contrary to
the public interest
(see s 16)
1.1 Information disclosure of which would be contempt of
court or Legislative Assembly etc
Information the disclosure of which would, apart from this Act and
any immunity of the Crown—
(a) be in contempt of court; or
(b) be contrary to an order made or direction given by a tribunal or
other entity having power to take evidence on oath; or
Examples
1 board of inquiry under the Inquiries Act 1991
2 commission under the Judicial Commissions Act 1994
3 royal commission under the Royal Commissions Act 1991
(c) infringe the privileges of—
(i) the Legislative Assembly; or
(ii) a house of the Commonwealth parliament; or
(iii) the parliament of a State; or
(iv) the Legislative Assembly of the Northern Territory.
1.1A Information in possession of a court or tribunal
(1) Information in the possession of a court or tribunal unless the
information is administrative in nature.
court includes—
(a) a registry or other office of a court or tribunal; and
(b) the staff of the registry or office.
Section 1.1B
1.1B Information related to integrity commission matters
(1) Information in the possession of the integrity commission, the
integrity commission inspector, a special investigator or another
entity, that would, or could reasonably be expected to—
(a) identify a person who has given information to the integrity
commission or integrity commission inspector, or allow the
identity of the person to be worked out; or
(b) adversely affect a preliminary inquiry, or an investigation, under
the Integrity Commission Act 2018; or
(c) disclose, or adversely affect the effectiveness of, a method or
procedure used by the integrity commission or integrity
commission inspector, to investigate or otherwise deal with a
complaint; or
(d) endanger the life or physical safety of a person who—
(i) carries out a function for the integrity commission or
integrity commission inspector; or
(ii) has given information to the integrity commission or
integrity commission inspector.
complaint—see the Integrity Commission Act 2018, section 287.
special investigator—see the Integrity Commission Act 2018,
section 286 (2).
1.2 Information subject to legal professional privilege
Information that would be privileged from production or admission
into evidence in a legal proceeding on the ground of legal professional
privilege.
Section 1.3
1.3 Information disclosure of which is prohibited under law
(1) Information that is confidential under the Adoption Act 1993,
section 60.
(2) Information that is protected information under the Children and
Young People Act 2008, section 844, other than information that—
(a) is disclosed to a person to whom it relates; and
(b) is not sensitive information under that Act, section 845.
(3) Information that is protected information under the Crimes (Child Sex
Offenders) Act 2005, section 133A.
(4) Information that is protected information under the Crimes
(Restorative Justice) Act 2004, section 64.
(5) Information that is protected information under the Housing
Assistance Act 2007, section 28 other than information disclosed to a
person to whom the information relates.
(6) Any other information the disclosure of which is prohibited by a
secrecy provision of a law.
secrecy provision—a provision of a law is a secrecy provision if it—
(a) applies to information obtained in the exercise of a function
under the law; and
(b) prohibits people mentioned in the provision from disclosing the
information, whether the prohibition is absolute or subject to
stated exceptions or qualifications.
1.4 Sensitive information
Information the disclosure of which would involve the unreasonable
disclosure of sensitive information about any individual (including a
deceased person).
Section 1.5
1.5 Information in possession of auditor-general
Information in the possession of the auditor-general that has been
obtained or generated in relation to an audit under the
Auditor-General Act 1996.
1.6 Cabinet information
(1) Information—
(a) that has been submitted, or that a Minister proposes to submit,
to Cabinet for its consideration and that was brought into
existence for that purpose; or
(b) that is an official record of Cabinet; or
(c) that is a copy of, or part of, or contains an extract from,
information mentioned in paragraph (a) or (b); or
(d) the disclosure of which would reveal any deliberation of Cabinet
(other than through the official publication of a Cabinet
decision).
(2) Subsection (1) does not apply to purely factual information that—
(a) is mentioned in subsection (1) (a); or
(b) is mentioned in subsection (1) (b) or (c) and is a copy of, or part
of, or contains an extract from, a document mentioned in
subsection (1) (a);
unless the disclosure of the information would involve the disclosure
of a deliberation or decision of Cabinet and the fact of the deliberation
or decision has not been officially published.
Cabinet includes a Cabinet committee or subcommittee.
Section 1.7
1.7 Examinations under Australian Crime Commission (ACT)
Act 2003
Information obtained through an examination conducted under the
Australian Crime Commission (ACT) Act 2003, section 20.
1.8 Information in possession of human rights commission
Information in the possession of the human rights commission that
has been obtained or generated in relation to—
(a) a commission-initiated consideration under the Human Rights
Commission Act 2005, section 48; or
(b) a complaint made under the Human Rights Commission
Act 2005, part 4.
1.9 Identities of people making disclosures
(1) Information that would, or could reasonably be expected to, disclose
the identity of a person who has made—
(a) a public interest disclosure under the Public Interest Disclosure
Act 2012; or
(b) a mandatory or voluntary report under the Children and Young
People Act 2008; or
(c) a confidential report under the Children and Young People
Act 2008, section 876.
(2) Information that would, or could reasonably be expected to, disclose
the identity of a person who gives information, produces a document
or answers a question in relation to an investigation of a public
interest disclosure under the Public Interest Disclosure Act 2012.
Section 1.10
1.10 Information relating to requests to cost election
commitments
Information about requests to cost election commitments under the
Election Commitments Costing Act 2012, section 5 unless the costing
period in which the request was made has ended.
1.11 Information in electoral rolls and related documents
(1) Information in any of the following documents other than information
disclosed to a person to whom it relates:
(a) an electoral roll, whether in printed or electronic form or on
microfiche or microfilm;
(b) a copy of a document mentioned in paragraph (a);
(c) a document setting out particulars of only 1 enrolled person that
was used in keeping an electoral roll;
(d) a copy of a document mentioned in paragraph (c);
(e) a document containing only copies mentioned in paragraph (d);
(f) a document derived from an electoral roll setting out particulars
of enrolled people.
electoral roll means—
(a) a roll of electors kept under the Electoral Act 1992; or
(b) a roll extract within the meaning of the Electoral Act 1992.
1.12 Information in possession of ombudsman
Information in the possession of the ombudsman that has been
obtained or generated in relation to—
(a) an ombudsman review; or
Section 1.13
(b) an investigation undertaken by the ombudsman under the
Ombudsman Act 1989, section 9; or
(c) a function exercised under the Ombudsman Act 1989,
division 2.2A (Reportable conduct).
1.13 National, Territory or State security information
(1) Information the disclosure of which would, or could reasonably be
expected to damage the security of the Commonwealth, the Territory
or a State.
(2) For subsection (1), the security of the Commonwealth includes—
(a) matters relating to detecting, preventing or suppressing
activities, whether within or outside Australia, that are
subversive of, or hostile to, the interests of the Commonwealth
or a country allied or associated with the Commonwealth; and
(b) the security of a communications system or cryptographic
system of the Commonwealth or another country used for—
(i) the defence of the Commonwealth or a country allied or
associated with the Commonwealth; or
(ii) the conduct of the international relations of the
Commonwealth.
(3) For subsection (1), the security of the Territory or State includes
matters relating to detecting, preventing or suppressing activities
within or outside the Territory or State, that are subversive of, or
hostile to, the interests of the Territory or a State.
1.14 Law enforcement or public safety information
(1) Information the disclosure of which would, or could reasonably be
expected to—
(a) prejudice the investigation of a contravention or possible
contravention of the law in a particular case; or
Section 1.14
(b) identify the existence or identity of a confidential source of
information in relation to the enforcement or administration of
the law; or
(c) endanger a person’s life or physical safety; or
(d) result in a person being subject to a serious act of harassment or
intimidation; or
(e) prejudice a person’s fair trial or the impartial adjudication of a
matter before a court or tribunal; or
(f) prejudice the effectiveness of a lawful method or procedure for
preventing, detecting, investigating or dealing with a
contravention or possible contravention of the law; or
(g) prejudice the maintenance or enforcement of a lawful method or
procedure for protecting public safety; or
(h) endanger the security of a building, structure or vehicle; or
(i) prejudice a system or procedure for the protection of people,
property or the environment; or
(j) facilitate a person’s escape from lawful custody; or
(k) prejudice the wellbeing of a cultural or natural resource or the
habitat of animals or plants.
(2) Information given in the course of an investigation of a contravention
or possible contravention of the law if the information was given
under compulsion under an Act that abrogated the privilege against
self-incrimination.
(3) Information obtained, used or prepared for an investigation by an
entity prescribed by regulation in the exercise of a function prescribed
by regulation.
(4) However this section does not apply to—
(a) information revealing that the scope of a law enforcement
investigation has exceeded the limits imposed by law; or
Section 1.15
(b) information containing a general outline of the structure of a
program adopted by an agency for dealing with a contravention
or possible contravention of the law; or
(c) a report on the degree of success achieved in a program adopted
by an agency for dealing with a contravention or possible
contravention of the law; or
(d) a report prepared in the course of a routine law enforcement
inspection or investigation by an agency whose functions
include that of enforcing the law (other than the criminal law or
the law relating to corruption); or
(e) a report on a law enforcement investigation that has already been
disclosed to the entity the subject of the investigation.
(5) In this section:
law includes law of the Commonwealth, a State or a foreign country.
1.15 Information in possession of custodial inspector
Information in the possession of the custodial inspector appointed
under the Custodial Inspector Act 2017, section 9 that has been
obtained or generated in relation to an examination or review
conducted under that Act, section 18.
1.16 Information in the possession of the ACT national
preventive mechanism
Information in the possession of the ACT National Preventive
Mechanism established under the Monitoring of Places of Detention
(Optional Protocol to the Convention Against Torture) Act 2018,
section 8C that has been obtained or generated in relation to an
examination of the treatment of detainees in places of detention under
that Act, division 1A.3.
Section 2.1
Schedule 2 Factors to be considered when
deciding the public interest
(see s 17 (1))
2.1 Factors favouring disclosure in the public interest
The following are factors favouring disclosure in the public interest:
(a) disclosure of the information could reasonably be expected to
do any of the following:
(i) promote open discussion of public affairs and enhance the
government’s accountability;
(ii) contribute to positive and informed debate on important
issues or matters of public interest;
(iii) inform the community of the government’s operations,
including the policies, guidelines and codes of conduct
followed by the government in its dealings with members
of the community;
(iv) ensure effective oversight of expenditure of public funds;
(v) allow or assist inquiry into possible deficiencies in the
conduct or administration of an agency or public official;
(vi) reveal or substantiate that an agency or public official has
engaged in misconduct or negligent, improper or unlawful
conduct or has acted maliciously or in bad faith;
(vii) advance the fair treatment of individuals and other entities
in accordance with the law in their dealings with the
government;
(viii) reveal the reason for a government decision and any
background or contextual information that informed the
decision;
Schedule 2 Factors to be considered when deciding the public interest
Section 2.1
(ix) reveal that the information was—
(A) incorrect; or
(B) out-of-date; or
(C) misleading; or
(D) gratuitous; or
(E) unfairly subjective; or
(F) irrelevant;
(x) contribute to the protection of the environment;
(xi) reveal environmental or health risks or measures relating
to public health and safety;
(xii) contribute to the maintenance of peace and order;
(xiii) contribute to the administration of justice generally,
including procedural fairness;
(xiv) contribute to the administration of justice for a person;
(xv) contribute to the enforcement of criminal law;
(xvi) contribute to innovation and the facilitation of research;
(b) the information is personal information of—
(i) the person making the request; or
(ii) a child and the information is to be given to the child’s
parent or guardian and the disclosure of the information to
the child’s parent or guardian is reasonably considered to
be in the best interests of the child; or
(iii) a deceased person and the person making the request for
the information is an eligible family member of the
deceased person.
Section 2.2
2.2 Factors favouring nondisclosure in the public interest
The following are factors favouring nondisclosure in the public
interest:
(a) disclosure of the information could reasonably be expected to
do any of the following:
(i) prejudice the collective responsibility of Cabinet or the
individual responsibility of members to the Assembly;
(ii) prejudice the protection of an individual’s right to privacy
or any other right under the Human Rights Act 2004;
(iii) prejudice security, law enforcement or public safety;
(iv) impede the administration of justice generally, including
procedural fairness;
(v) impede the administration of justice for a person;
(vi) prejudice the security or good order of a correctional
centre;
(vii) impede the protection of the environment;
(viii) prejudice the economy of the Territory;
(ix) prejudice the flow of information to the police or another
law enforcement or regulatory agency;
(x) prejudice intergovernmental relations;
(xi) prejudice trade secrets, business affairs or research of an
agency or person;
(xii) prejudice an agency’s ability to obtain confidential
(xiii) prejudice the competitive commercial activities of an
agency;
Schedule 2 Factors to be considered when deciding the public interest
Section 2.2
(xiv) prejudice the conduct of considerations, investigations,
audits or reviews by the ombudsman, auditor-general,
integrity commission, integrity commission inspector or
human rights commission;
(xv) prejudice the management function of an agency or the
conduct of industrial relations by an agency;
(xvi) prejudice a deliberative process of government;
(xvii) prejudice the effectiveness of testing or auditing
procedures;
(xviii) prejudice the conservation of any place or object of natural,
cultural or heritage value, or reveal any information
relating to Aboriginal or Torres Strait Islander traditional
knowledge;
(b) the information—
(i) is personal information of a child and the disclosure of the
information is reasonably considered not to be in the best
interests of the child; or
(ii) would be privileged from production in a legal proceeding
on the ground of legal professional privilege; or
(iii) is personal information of a deceased person and the person
making the request is an eligible family member of the
deceased person and the disclosure of the information
could reasonably be expected to impact on the deceased
person’s privacy if the deceased person were alive; or
(iv) is information disclosure of which is prohibited by an Act
of the Territory, a State or the Commonwealth; or
(v) is about unsubstantiated allegations of misconduct or
unlawful, negligent or improper conduct and disclosure of
the information could prejudice the fair treatment of an
individual.
Section 2.3
2.3 Meaning of eligible family member—sch 2
(1) For this schedule, eligible family member, of a deceased person,
means—
(a) a domestic partner of the deceased person; or
(b) if a domestic partner is not reasonably available—an adult child
of the deceased person; or
(c) if a domestic partner or adult child is not reasonably available—
an adult sibling of the deceased person; or
(d) if a person mentioned in paragraph (a), (b) or (c) is not
reasonably available and the deceased person was not an
Aboriginal or Torres Strait Islander person—the next nearest
adult relative of the deceased person who is reasonably
available; or
(e) if a person mentioned in paragraph (a), (b) or (c) is not
reasonably available and the deceased person was an Aboriginal
or Torres Strait Islander person—a person who is an appropriate
person according to the tradition or custom of the Aboriginal or
Torres Strait Islander community to which the deceased person
belonged and who is reasonably available.
Note Domestic partner—see the Legislation Act, s 169 (1).
(2) For this section, a person is not reasonably available if a person of
that description—
(a) does not exist; or
(b) cannot reasonably be contacted; or
(c) is unable or unwilling to act as the eligible family member of the
deceased person for the purposes of this Act.