24ARequests may be refused if documents cannot be found, do not exist or have not been received

#### 24A Requests may be refused if documents cannot be found, do not exist or have not been received Document lost or non‑existent (1) An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i) is in the agency’s or Minister’s possession but cannot be found; or (ii) does not exist. Document not received as required by contract (2) An agency may refuse a request for access to a document if: (a) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and (b) the agency has not received the document; and (c) the agency has taken all reasonable steps to receive the document in accordance with those contractual measures. 34 Subsection 29(1) Omit “(not being an application fee)”. 35 Section 30A Repeal the section. 36 Section 92A Repeal the section. 37 Paragraph 94(2)(a) Omit “the applicant is included in one class of applicant or another class of applicant or according to whether”. 38 Division 1 of Part II of Schedule 2 (after the item relating to the Commonwealth Scientific and Industrial Research Organisation) Insert: | Department of Defence, in relation to documents in respect of:(a) the collection, reporting or analysis of operational intelligence; or(b) special access programs, under which a foreign government provides restricted access to technologies. | | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ | 39 Division 1 of Part II of Schedule 2 (the item relating to the Federal Airports Corporation) Repeal the item. Part 2—Application provisions 40 Application—items 2, 3, 7, 16, 19 and 33 The amendments made by items 2, 3, 7, 16, 19 and 33 apply in relation to contracts entered into at or after the commencement of those items. 41 Application—items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39 The amendments made by items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39 apply in apply in relation to the following: (a) requests for access made under section 15 of the Freedom of Information Act 1982 that are received at or after the commencement of those items; (b) applications under section 48 of that Act that are received at or after the commencement of those items. Part 3—Amendment of other Acts Administrative Appeals Tribunal Act 1975 41A After paragraph 49(1)(c) Insert: (ca) the Australian Information Commissioner holding office under the Australian Information Commissioner Act 2010; and 41B Subsection 49(3) Omit “or (c)”, substitute “, (c) or (ca)”. Australian Crime Commission Act 2002 42 Schedule 1 Omit “Freedom of Information Act 1982, section 58”. Environment Protection and Biodiversity Conservation Act 1999 43 Paragraph 93(3A)(a) Repeal the paragraph, substitute: (a) is: (i) an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or (ii) a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or 44 Subparagraph 131AA(4)(a)(i) Repeal the subparagraph, substitute: (i) is an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or (ia) is a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or 45 Paragraph 133(4)(a) Repeal the paragraph, substitute: (a) is: (i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or (ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or 46 Paragraph 135A(4)(a) Repeal the paragraph, substitute: (a) is: (i) an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or (ii) a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or 47 Paragraph 143(6)(a) Repeal the paragraph, substitute: (a) is: (i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or (ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or 48 Paragraph 146B(4)(a) Repeal the paragraph, substitute: (a) is: (i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets); or (ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or Inspector‑General of Intelligence and Security Act 1986 49 Subsection 34(1AA) Before “section 60A”, insert “Division 9 of Part VII or”. 50 Paragraph 34(1AA)(a) Before “section”, insert “Division or”. 51 Subsection 34(5) Before “section 60A”, insert “Division 9 of Part VII or”. 52 After paragraph 34(5)(c) Insert: (ca) if the information is obtained by the person because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and Schedule 7—Privacy Commissioner transition Part 1—Preliminary 1 Definitions (1) In this Schedule: commencement day means the day on which the new law commences. Information Commissioner means the Australian Information Commissioner appointed under section 14 of the new law. new law means the Australian Information Commissioner Act 2010. old law means Division 1 of Part IV of the Privacy Act 1988 as in force immediately before the commencement day. Privacy Commissioner means the Privacy Commissioner appointed under section 19A of the old law. (2) An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law. (3) Subject to subitem (2), an expression used in this Schedule that is also used in the Privacy Act 1988 has the same meaning in this Schedule as it has in that Act. (4) Subject to subitems (2) and (3), an expression used in this Schedule that is also used in the Freedom of Information Act 1982 has the same meaning in this Schedule as it has in that Act. (5) To avoid doubt, a reference in this Schedule to an Act, or a provision of an Act, that is amended by this Act is, in relation to a time on or after the commencement day, taken to be a reference to the provision as so amended. Part 2—Office holders, staff and consultants 2 Privacy Commissioner (1) The person holding office as the Privacy Commissioner under section 19A of the old law immediately before the commencement day is taken to have been appointed as the Privacy Commissioner by the Governor‑General under subsection 14(4) of the new law for the balance of the person’s term of appointment that remained immediately before the commencement day. (2) The Privacy Commissioner is taken to have been appointed on the same terms and conditions as applied immediately before the commencement day. (3) This item does not prevent those terms and conditions being varied after the commencement day. 3 Staff Existing agreements to continue (1) Subitem (2) applies if: (a) on or after the commencement day, an APS employee is moved, because of a determination under section 72 of the Public Service Act 1999, from the Office of the Privacy Commissioner to the Office of the Australian Information Commissioner; and (b) the employee’s employment in the Office of the Privacy Commissioner was subject to any of the following agreements: (i) a collective agreement; (ii) an enterprise agreement; (iii) an ITEA; (iv) an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee); (v) a pre‑reform certified agreement. (2) The agreement concerned has effect after the move, in relation to the employee’s employment, as if it had been made with the Information Commissioner. Regulations (3) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from the Office of the Privacy Commissioner to the Office of the Australian Information Commissioner. Definitions (4) In this item: AWA has the meaning given by clause 1 of Schedule 7A to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Note: AWA is short for Australian workplace agreement. collective agreement has the meaning given by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. enterprise agreement has the meaning given by section 12 of the Fair Work Act 2009. ITEA has the meaning given by section 326 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Note: ITEA is short for individual transitional employment agreement. pre‑reform AWA has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. pre‑reform certified agreement has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 4 Consultants (1) A person engaged as a consultant under subsection 26A(3) of the old law immediately before the commencement day is taken, on and after the commencement day, to have been engaged by the Information Commissioner as a consultant under section 24 of the new law. (2) The person is taken to have been engaged on the same terms and conditions as applied to the person immediately before the commencement day. (3) This item does not prevent those terms and conditions being varied after the commencement day. Part 3—Things done by, or in relation to, the Privacy Commissioner 5 Things done by, or in relation to, Privacy Commissioner (1) If a thing was done by, or in relation to, the Privacy Commissioner before the commencement day, for a purpose, then the thing is taken, on and after the commencement day, to have been done by, or in relation to, the Information Commissioner for the same purpose. (2) In this item, doing a thing includes making an instrument. (3) The Minister may, by written instrument, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Privacy Commissioner. (4) A determination under subitem (3) is not a legislative instrument. 6 Consultations by, and with, Privacy Commissioner (1) A consultation being undertaken for the purposes of a provision of an Act (or an instrument under an Act) that was started by the Privacy Commissioner before the commencement day may be continued by the Information Commissioner in accordance with that provision on or after the commencement day. (2) If, after undertaking consultation in accordance with a provision covered by subitem (1), the Privacy Commissioner would have been required or permitted to make a decision (or take another specified action), the Information Commissioner may make the decision (or take the specified action) after completing the consultation. 7 Comments sought, but not received, by Privacy Commissioner (1) This item applies if: (a) the Privacy Commissioner gave a notice in accordance with a provision of an Act to a person for the purpose of: (i) seeking the person’s views before making a decision; or (ii) giving the person an opportunity to be heard before making a decision; and (b) the person did not respond to the Privacy Commissioner before the commencement day. (2) The person may respond to the Information Commissioner in accordance with the provision of the Act on or after the commencement day. 8 Approval sought from, but not given by, Privacy Commissioner (1) This item applies if: (a) the approval of the Privacy Commissioner was sought under a provision of an Act (or an instrument under an Act) for a program protocol, guidelines, code or other instrument, or for the variation or revocation of such a protocol, guidelines, code or instrument; and (b) the Privacy Commissioner did not give approval before the commencement day. (2) On or after the commencement day, the Information Commissioner may give approval in accordance with the provision in accordance with which the approval was sought. 9 Decisions made, but not implemented, by Privacy Commissioner (1) This item applies if: (a) the Privacy Commissioner made a decision in accordance with a provision of the Privacy Act 1988; and (b) having made the decision, the Privacy Commissioner was required to take a step to implement it; and (c) the Privacy Commissioner did not take the step before the commencement day. (2) The Information Commissioner may take the step in accordance with the provision to implement the decision on or after the commencement day. (3) In this item, make a decision includes forming a view or being satisfied of a matter. 10 Privacy Advisory Committee giving advice to Privacy Commissioner (1) This item applies if: (a) the Privacy Advisory Committee was requested to advise the Privacy Commissioner in accordance with the functions conferred on the Committee by section 83 of the Privacy Act 1988; and (b) the Committee did not advise the Privacy Commissioner before the commencement day. (2) The Committee may advise the Information Commissioner in accordance with the functions conferred by section 83 of the Privacy Act 1988 on or after the commencement day. Part 4—Investigations 11 Investigations (1) An investigation for the purposes of a provision of an Act (or an instrument under an Act) that was started by the Privacy Commissioner before the commencement day may be completed by the Information Commissioner in accordance with that provision on or after the commencement day. (2) Subitem (1) applies whether the investigation was initiated by a complaint or at the initiative of the Privacy Commissioner. 12 Requirement to give evidence or hold conference etc. (1) Subitem (2) applies if: (a) the Privacy Commissioner required a person to provide evidence, information or any document; and (b) the evidence, information or document was not provided to the Privacy Commissioner before the commencement day. (2) The person must provide the evidence, information or document to the Information Commissioner, on the same basis on which it was required to be provided to the Privacy Commissioner. (3) Subitem (4) applies if: (a) the Privacy Commissioner directed a person to attend a conference under section 46 of the Privacy Act 1988; and (b) the conference was not held before the commencement day. (4) The person must attend the conference if the conference is: (a) presided over by the Information Commissioner; and (b) held on or after the commencement day; and (c) held in accordance with section 46 of the Privacy Act 1988. 13 Applications on foot as part of investigation proceeding (1) This item applies if: (a) an application was made to the Privacy Commissioner as part of an investigation under section 38A or 38B of the Privacy Act 1988 (as in force before the commencement day); and (b) the Privacy Commissioner did not determine the application before the commencement day. (2) The Information Commissioner may determine the application in accordance with the provision in accordance with which the application was made on or after the commencement day. 14 Conference convened, but not held (1) This item applies if: (a) the Privacy Commissioner convened a conference in accordance with section 47 of the Privacy Act 1988; and (b) the conference was not held before the commencement day. (2) The Information Commissioner may hold the conference in accordance with section 47 of the Privacy Act 1988 on or after the commencement day. 15 Submissions invited, but not received, by Privacy Commissioner (1) This item applies if: (a) the Privacy Commissioner, under subsection 43(5) or 53B(3) of the Privacy Act 1988, afforded a complainant or respondent an opportunity to appear before the Commissioner and make submissions, orally, in writing or both, in relation to a matter to which an investigation relates; and (b) the submissions were not made before the commencement day. (2) The Information Commissioner may, in accordance with the subsection, receive the submissions on or after the commencement day. Part 5—Written instruments and reporting requirements 16 References in instruments (1) This item applies if: (a) an instrument is in force immediately before the commencement day; and (b) the instrument contains a reference to the Privacy Commissioner. (2) The instrument has effect on and after the commencement day as if the reference to the Privacy Commissioner were a reference to the Information Commissioner. (3) The Minister may, by written instrument, determine that subitem (1) does not apply in relation to a specified reference. (4) A determination under subitem (3) is not a legislative instrument. 17 Reporting requirements Reports for periods ending after the commencement day (1) Subitem (2) applies if: (a) immediately before the commencement day, a law required the Privacy Commissioner to provide a report in relation to a period; and (b) the period ends on or after the commencement day. (2) The Information Commissioner must provide the report, as required, in relation to so much of the period as occurs before the commencement day. Reports for periods ending before the commencement day (3) Subitem (4) applies if: (a) a law required the Privacy Commissioner to provide a report in relation to a period that ended before the commencement day; and (b) the report was not provided before the commencement day. (4) The Information Commissioner must provide the report as required. Part 6—Legal and other proceedings 18 Substitution of Information Commissioner as a party to pending proceedings If any proceedings to which the Privacy Commissioner was a party were pending in any court or tribunal immediately before the commencement day, the Information Commissioner is substituted for the Privacy Commissioner as a party to the proceedings on and after the commencement day. 19 Reviews, examinations etc. by Privacy Commissioner (1) This item applies if the Privacy Commissioner was doing any of the following things under the Privacy Act 1988 (but had not finished doing that thing) before the commencement day: (a) conducting a review of an approved privacy code under section 18BH; (b) examining proposed enactments in accordance with the function set out in paragraph 27(1)(b); (c) undertaking a conciliation process for the purposes of paragraph 28A(1)(b); (d) undertaking research and monitoring developments in accordance with the function set out in paragraph 27(1)(c); (e) examining records for the purposes of subsection 27(3); (f) examining records for the purposes of paragraph 28(1)(d). (2) The Information Commissioner may finish doing the thing in accordance with the provision on and after the commencement day. 20 Review of adjudicator’s decisions (1) This item applies if: (a) a person applied under section 18BI of the Privacy Act 1988 to the Privacy Commissioner for review of a determination made by an adjudicator; and (b) the Privacy Commissioner did not complete the review before the commencement day. (2) The Information Commissioner may complete the review in accordance with section 18BI of the Privacy Act 1988 on and after the commencement day. 21 Conference convened, but not held (1) This item applies if: (a) the Privacy Commissioner convened a conference in accordance with section 76 of the Privacy Act 1988; and (b) the conference was not held before the commencement day. (2) The Information Commissioner may hold the conference in accordance with sections 76 and 77 of the Privacy Act 1988 on or after the commencement day. 22 Conference held, but determination not made, by Privacy Commissioner (1) This item applies if: (a) the Privacy Commissioner held a conference in accordance with section 76 of the Privacy Act 1988; and (b) before the commencement day, the Privacy Commissioner did not make a determination in accordance with section 79 of that Act in relation to the matters raised at the conference. (2) The Information Commissioner may make a determination in relation to those matters in accordance with section 79 of the Privacy Act 1988 on or after the commencement day. Part 7—Miscellaneous 23 Records etc. of Office of the Privacy Commissioner All records or documents held, immediately before the commencement day, for the purposes of the performance of the functions, or the exercise of the powers, of the Privacy Commissioner, are, on and after the commencement day, taken to be held for the purposes of the performance of the functions, or the exercise of the powers, of the Information Commissioner. 24 Disclosure of private information Despite the repeal of section 96 of the Privacy Act 1988 by this Act, that section (as in force immediately before the commencement day) continues to apply, in relation to conduct engaged in before the commencement day, as if that section had not been repealed. 25 Failure to appear before, or give information to, the Privacy Commissioner (1) Subitem (2) applies if: (a) section 65 or 66 of the Privacy Act 1988 applied to a person before the commencement day in relation to conduct engaged in by the person; and (b) that provision would not (but for this item) apply to the person on or after the commencement day. (2) That section applies to the person in relation to the conduct on and after the commencement day. 26 Saving of existing delegations A delegation in force under section 99 of the Privacy Act 1988 immediately before the commencement day continues to have effect, subject to the new law, as if it were a delegation under section 25 of the new law on and after the commencement day. 27 Regulations (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Schedule to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Schedule. (2) The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.