Chapter 16: The legislative vehicle

Amendment or new Act?

There is a question whether the legislation should be redrafted and re-enacted in its entirety. Generally speaking there are two situations where, on review of an Act, complete redrafting is desirable. The first is where amendments are proposed which are of such substance, or of such number, that amending the original Act would render it less than desirably coherent or understandable. The second is where the original Act is already difficult for its intended audience to read and understand by nature of its language and structure, and where redrafting would render it more accessible.

We shall take both these matters in turn in relation to the OIA and LGOIMA.


Proposed amendments

We have outlined above some significant amendments we believe to be necessary. That is by no means a full list. Throughout the report we recommend many other changes, some more far-reaching than others. The sheer number of amendments may of itself merit a new Act. Large numbers of ad hoc amendments are likely to increase problems with navigating and understanding the Act. Moreover some of the amendments we propose are of policy significance, especially those relating to proactive release and oversight functions. These constitute a shift in focus which can best be marked by a new Act.



Overall the Act is not characterised by the tortuous expression and over-long sentences which are a feature of many of our older Acts of Parliament. There are a few archaisms (“shall”, “deemed” and “subject to”) and as noted above, there are some examples of outdated and obscure language that effectively need a modern translation.

Some provisions are unduly complicated, and could do with some reorganisation. One is section 2, the interpretation section, on which a number of submitters commented. We think this section in particular could benefit from a modern drafter’s attention. Confusion is caused by the large number of paragraphs in the definition of “official information”, and also by subsections of section 2 which deem that various kinds of arrangement do, or do not, constitute situations where official information is held. We think much could be done by moving these important provisions to a separate section and getting rid of the constant reference to deeming.

We have also heard an opinion that section 52 of the OIA, the so-called “savings” section, could do with an overhaul to clarify the relationship between the OIA and the secrecy provisions which appear in several Acts.


There was, however, greater criticism from submitters on the order and structure of the Acts. Many felt that the sections are not currently arranged in logical order. As one submitter put it colloquially:

There is a fair bit of jumping around and cross-referencing between sections which makes it difficult to follow.

Related provisions are sometimes separated in the Acts, and there is no attempt to follow a natural chronological order.

Others commented that section 18 (reasons for refusal) tends to get forgotten and should be more prominently placed adjacent to the grounds for withholding in sections 6 to 9. Section 52 contains important provisions about withholding material where releasing it would constitute contempt of court, and other enactments which override the OIA: currently this is at the end of the legislation in a section obscurely titled “Savings”; it should be made more upfront.

It was also noted that some key provisions are hidden in the middle of sections where they do not sufficiently stand out. This is particularly so of the public interest override in section 9. Another example was given to us by a submitter in the following words:

Another example is the ability to charge for requests which is currently hidden in a wordy section 15(1). It would be useful if these key parts of the OIA regime could be redrafted into standalone provisions in Part 1 or Part 2 of the OIA.

We agree that the current order in which the provisions appear in the OIA is not logical and that it should be possible to reorder those provisions in a way which proceeds in a linear progression: making a request; dealing with the request (including the time for doing so); reasons for refusal (including grounds for withholding); the process to be followed in both disclosing and withholding information; and complaints. Key provisions, such as the power to charge, should be placed where they are clear and prominent.


Overall, we take the view that the OIA and LGOIMA should be re-drafted and re-enacted. The opportunity to better order and structure the Act is the main reason for that conclusion, but we think that the extent of recommended amendment supports it. The opportunity can then also be taken to modernise and simplify the language as appropriate. That has been the course taken by the Australian state legislatures when revising their freedom of information legislation.

The majority of submissions agreed with this view. The main concern was that of structure and order. Some commented that the current structure was a barrier to understanding. One submission noted the need for informative headings. The Ombudsmen said that there are a number of potential amendments under consideration which might be difficult to incorporate seamlessly into the existing legislation.

R136The OIA and LGOIMA should be re-drafted and re-enacted. The sections should be rearranged in a more logical order; important provisions which are presently insufficiently emphasised should be given more prominence; and the language should be modernised and simplified as appropriate.